-\ 


r-;t;cn''  I 


LEADING     CASES 


IN    THE    BIBLfefP^ 


/O^^ 


OCT  V  -  1911 


.^^. 


BY  / 

DAVID   WERNER  AMRAM,  M.A.,  LL.B. 

Member  of  the  Philadelphia  Bar 


^i?GfGALSe^ 


"  If  by  any  means  we  can  determine  the  early  forms 
of  jural  conceptions,  they  will  be  invaluable  to  us. 
These  rudimentary  ideas  are  to  the  jurist  what  the 
primary  crusts  of  the  earth  are  to  the  geologist.  They 
contain,  potentially,  all  the  forms  in  which  law  has 
subsequently  exhibited  itself." 

Sir  Henry  Sumner  Maine. 


PHILADELPHIA 

JULIUS  H.   GREENSTONE 

1905 


Copyrighted  1905 
By  David  Werner  Amram 


Press  of 

The  New  Era  Printihg  Compahy, 

Lancaster,  Ph. 


DEDICATED 

MOST   AFFECTIONATELY   TO    MY   DEAR    PARENTS 

WERNEE  D.   AMRAM 

ESTHER  AMRAM 

ON    THE 

FORTIETH   ANNIVERSARY   OF   THEIR    WEDDING 

MAY  6,   1905 


PREFACE. 

A  Leading  Case  is  one  "which  decides  some  par- 
ticular point  in  question,  and  to  which  reference  is 
constantly  or  frequently  made,  for  the  purpose  of 
determining  the  law  in  similar  questions."  (Bou- 
vier.)  In  the  strict  sense  of  this  definition  the  cases 
in  this  volume  cannot  be  called  leading  cases,  al- 
though they  have  been  frequently  cited,  not  only  in 
the  Jewish  lawbooks,  but  also  in  the  ecclesiastical  and 
civil  courts  of  Christendom.  Although  many  of  them 
are  legendary  accounts  and  not  actual  records  of 
cases  decided  in  courts  of  law,  I  have  chosen  the  title 
Leading  Cases  for  them  because  they  are  the  first 
records  of  their  kind  and,  by  reason  of  the  fact  that 
they  are  embodied  in  the  Biblical  literature,  have 
maintained  throughout  the  centuries  a  position  of 
preeminence  as  authorities,  not  only  in  questions  of 
law,  but  also  in  matters  of  doctrine,  of  faith  and  of 
history. 

My  views  of  the  nature  of  the  eases  and  the  scope 

V 


vi  PKEFACE. 

of  the  decisions— where  decisions  are  made — are,  as 
a  rule,  not  the  views  expressed  in  either  the  Jewish 
or  non- Jewish  religious  or  legal  literature.  They  have 
been  considered  from  the  historical  point  of  view,  read, 
as  far  as  possible,  in  the  light  of  their  own  times,  with- 
out regard  to  the  interpretation  which  later  ages  have 
placed  upon  them.  There  has  never  been  a  uniform 
system  of  interpreting  the  Bible,  and  every  possible 
construction  has  been  given  to  these  cases,  according 
to  the  knowledge,  the  religion  or  the  prejudice  of  the 
interpreter.  I  offer  my  guess  as  to  their  meaning 
with  all  due  deference  to  the  opinion  of  the  many  who 
will  disagree  with  me,  both  among  the  orthodox  and 
the  heterodox  interpreters  of  the  Bible.  I  have  re- 
ceived a  few  suggestions  from  the  Hebrew  commenta- 
tors and  from  some  of  the  modern  higher  critics,  but 
the  bulk  of  the  commentaries  and  works  on  exegesis 
that  I  have  examined  are  entirely  valueless  for  my 
purpose. 

Thirteen  of  the  cases  appearing  in  this  volume  were 
published  in  the  ''Green  Bag"  of  Boston  during  the 
years    1900   and   1901.     "The   Trial   of   Jeremiah" 


PREFACE.  vii 

appeared  in  the  ''Biblical  World"  of  Chicago  in 
December,  1900.  The  other  cases  have  never  before 
been  published.  Those  heretofore  published  have 
been  revised,  some  of  them  rewritten.  Repetitions 
will  no  doubt  be  found,  although  a  conscientious  effort 
has  been  made  to  eliminate  them.  This  and  other 
faults  are  left  to  the  indulgence  of  the  considerate 
reader,  to  whom  this  book  is  presented  with  the  hope 
that  he  may  find  in  its  perusal  a  little  of  the  pleasure 
that  I  have  found  in  its  preparation. 

I  gratefully  acknowledge  the  assistance  given  me 
by  my  wife,  who  revised  the  manuscript,  read  proof 
and  prepared  the  index. 

David  Werner  Amram. 

May  6,  1905. 


TABLE    OF    CONTENTS. 

Page. 

Preface   Ill 

Introduction 1 

The  Case  of  Adam  and  Eve 19 

The  Murder  of  Abel 34 

The  Purchase  of  the  Cave  of  Machpelah 44 

The  Sale  of  Esau's  Birthright 55 

In  the  jMatter  of  Isaac's  Will 63 

The  Covenant  of  Jacob  and  Laban 75 

The  Blasphemy  of  the  Son  of  Shelomith 91 

The  Case  of  Zelophehad's  Daughters 101 

The  Trial  of  Achan  by  Lot 113 

The  Case  of  Jephthah's  Daughter 121 

The  Case  of  Boaz  and  Ruth 131 

The  Case  of  Adonijah,  Abiathar  and  Joab 145 

The  Judgment  of  Solomon 157 

The  Case  of  Naboth's  Vineyard 167 

A  Conveyance  of  Land  to  the  Prophet  Jeremiah 177 

The   Trial   of   Jeremiah 185 

The  Trial  of  Job  in  the  Court  of  Heaven 196 

Job's  Appeal  from  the  Judgment  of  God 204 

Jndex    216 


INTRODUCTION. 

He  who  believes  that  the  Bible  was  literally  inspired 
by  God,  reads  and  examines  it  by  the  aid  of  canons 
of  criticism  differing  from  those  applied  to  other 
documentary  remains  of  antiquity.  He  reads  the 
Bible  in  a  spirit  of  devotion,  seeks  in  it  precept  and 
illustration  in  support  of  his  views  of  right  and 
wrong  and  finds  in  it  weapons  of  offense  and  defense 
with  which  to  fight  the  battles  of  his  religious  convic- 
tions. But  this  theory  of  direct  and  immediate  divine 
inspiration,  although  it  may  give  the  Bible  a  peculiar 
sanctity,  cannot  fail  to  render  its  content  for  the  most 
part  unintelligible.  The  Bible  may  or  may  not  have 
been  written  in  a  manner  different  from  other  produc- 
tions of  the  human  understanding,  but  it  is  certain 
that  it  has  value  only  if  studied  by  the  rational  and 
critical  method  that  is  applied  to  all  other  historical 
documents  and  records. 

The  Bible  is  a  collection  of  legends,  chronicles, 
myths,  historical  narratives,  laws,  moral  precepts, 
I  1 


2  LEADING    CASES    IN    THE    BIBLE. 

orations,  rliapsodies  and  proverbs,  written  at  different 
times  during  a  period  of  probably  over  a  thousand 
years.  Much  of  this  material  existed  as  folklore  and 
oral  tradition  long  before  it  was  written  down ;  some 
of  it  probably  first  appeared  in  writing  very  nearly 
in  the  form  in  which  it  has  been  handed  down  to  us. 
In  these  records  many  stages  of  civilization  have  left 
memorials  of  their  painful  progress  in  religion,  in 
morals  and  in  law.  The  striving  of  the  human  mind 
in  its  conquest  of  the  physical  world,  the  growth  of 
the  sense  of  right  from  its  crude  origin  to  its  sublime 
perfection  in  the  prophetic  literature,  the  progress  of 
society  as  revealed  in  the  customs  and  laws  of  many 
generations  of  nomads,  farmers,  citizens,  ecclesiastics 
and  kings,  the  history  of  a  remarkable  people  of 
Semitic  origin,  small  in  number,  but  of  extraordinary 
ability  to  master  its  environment  and  survive  under 
conditions  which  clearly  pointed  to  annihilation— all 
this  may  be  read  in  this  remarkable  collection  of  docu- 
ments, the  Bible. 

Generations  have  come  and  gone  since  the  biblical 
code  was  completed.      Churches,  religions,  sects  and 


INTRODUCTION.  3 

individuals  have  interpreted  and  misinterpreted  it, 
and  have  read  into  it  every  possible  and  impossible 
conception  of  the  human  mind  in  their  effort  to  find 
sanction  and  authority  in  its  dicta.  It  has  rarely 
been  subjected  to  sane  exegesis.  A  priori  theorizing, 
hysterical  raving  and  cruel  fanaticism  have  made  the 
Bible  the  play  ground  of  fancy,  the  battle  ground  of 
speculation  and  the  burial  ground  of  freedom  of 
thought.  In  modern  times,  much  superstitious  rever- 
ence for  the  ancient  words  still  prevails.  Preachers 
still  use  Bible  texts  torn  from  their  context  for 
parenetic  purposes;  revivalists  still  make  capital  of 
miracles  that  the  human  mind  has  long  ago  rejected 
as  impossible  and  untrue;  and  all  sorts  of  men  hold- 
ing briefs  for  all  sorts  of  theories,  dogmas,  self- 
delusions,  hypocrisies,  prejudices  and  falsehoods  still 
point  with  pride  to  the  Bible  as  the  basis  of  their 
authority  and  the  source  of  their  illustration.  Alas 
for  the  good,  gray,  old  book,  its  history  is  the  saddest 
chapter  of  the  history  of  mankind. 

But  the  nineteenth  century  witnessed  the  emanci- 
pation of  the  intellect  of  a  great  and  influential  pro- 


4  LEADING    CASES    IN    THE    BIBLE. 

portion  of  civilized  men  from  the  shackles  of  super- 
stition. The  work  of  the  martyrs  of  the  middle  ages, 
vitalized  by  the  spirit  of  the  Renaissance,  has  at  last 
born  fruit,  and  those  principles  of  liberty  which  find 
formal  expression  in  the  First  Amendment  of  the 
Constitution  of  the  United  States  have  grown  ever 
stronger  and  more  effective  among  the  nations  of  the 
earth.  Even  those  who  still  have  a  predilection  for 
deductive  reasoning  are  no  longer  fanatical  in  their 
insistence  upon  the  truth  of  the  conclusions  which 
they  reach.  The  spirit  of  free,  scientific  inquiry 
which  marked  the  nineteenth  century  has  affected, 
often  unconsciously,  even  those  who  have  approached 
the  Bible  with  preconceived  notions  of  its  teachings. 
It  is  happily  true  that  the  good  old  days  of  theological 
domination  have  passed  away  never  to  return ;  and 
though  many  a  revival  of  religious  hysteria.  Christian 
Science,  ecclesiastical  dominion  and  popular  folly  may 
give  apparent  reason  for  loss  of  faith  in  the  perma- 
nent uplifting  of  the  human  race  to  a  higher  plane  of 
sane  and  truthful  thought  and  utterance,  we  may 
confidently  rely  on  the  conclusions  based  upon  the 


INTRODUCTION.  5 

evidence  furnished  by  history  that  progress  goes  on 
in  spite  of  temporary  relapses. 

The  historical,  ethical  and  religions  aspects  of  the 
Bible  have  been  well  considered  by  many  scholars  of 
note  and  by  a  host  of  students  of  humbler  capacity 
and  more  modest  achievement,  but  the  legal  aspects 
of  the  Bible  records  have  been  practically  ignored. 
The  Bible  has  been  studied  almost  exclusively  by 
theologians  and  rarely  by  lawyers.  The  fact  that 
lawyers,  or  men  with  legal  training,  have  not  found 
the  Bible  an  object  worthy  of  their  serious  attention 
has  contributed  not  a  little  to  its  misinterpretation 
and  to  the  misconceptions  that  have  arisen  out  of  it. 
The  long  continued  misinterpretation  of  the  biblical 
records  in  the  interest  of  theological  dogma,  falsely 
called  religion,  or  of  race  prejudice  falsely  based  on 
the  science  of  comparative  sociology,  has  helped  to 
bring  the  Bible  and  biblical  study  into  disrepute. 
Men  of  modern  times  who  love  freedom  in  thought 
and  in  expression— and  among  this  class  lawyers  are 
by  training  and  professional  practice  easily  among 
the  first— have  revolted  from  the  influence  of  dog- 


6  LEADING    CASES    IN    THE    BIBLE. 

matic  religion  and  its  superstructures  of  vanity  and 
"vexation  of  the  spirit.  With  this  revolt  has  come  a 
concomitant  loss  of  all  interest  in  the  Bible  for 
its  OAvn  sake,  as  a  valuable  record  of  history,  custom 
and  law.  Thus  the  Bible  has  suffered  for  the  sins  of 
the  churches  and  of  the  official  expounders  of  the 
word  of  God.  The  pages  of  history  are  overburdened 
with  testimony  showing  how  every  villainy  practiced 
by  officialdom  and  hierarchy,  every  intolerant  edict 
of  king  or  prelate,  every  special  plea  for  vested  rights 
founded  on  class  privilege,  every  oppression  of  the 
many  by  the  few,  has  been  ably  defended  by  the 
offiicial  mouthpiece  of  many  a  church.  And  even  in 
our  own  day  and  time  we  see  so-called  ministers  of 
religion  encouraging  and  supporting  similar  wicked- 
ness and  like  their  forerunners  appealing  to  the  Bible 
as  though  it  really  gave  support  to  their  wretched 
special  pleading.  The  result  of  all  this  has  been  that, 
to  the  opponents  of  the  church,  the  Bible  has  become 
an  object  of  contempt,  biTt  to  its  adherents  it  has 
remained  an  object  of  veneration.  The  former  class 
do  not  read  it  at  all ;  the  latter  read  it  in  the  light  of 


INTRODUCTION.  7 

official  exposition,  which  is  quite  as  bad,  if  not  worse 
than  not  reading  it  at  all. 

Examined  from  the  legal  point  of  view  and  read 
with  no  other  immediate  purpose  than  to  understand 
the  nature  of  the  legal  institutions  that  are  described 
in  it  and  are  illustrated  by  its-  cases,  legends  and 
chronicles,  the  Bible  becomes  an  object  of  renewed 
interest.  For  the  biblical  records  are  the  deposits 
left  by  the  receding  waters  of  time,  by  the  examina- 
tion of  which  the  laws  and  customs  of  past  ages  may 
be  understood.  In  these  records  may  be  found  the 
very  beginnings  of  an  institution,  its  gradual  unfold- 
ing and  its  full  development.  These  data  are  not  set 
forth  separately  and  clearly,  but,  like  the  residuum 
on  the  seashore,  scattered  without  order,  partly  buried 
in  foreign  matter,  ofttimes  entirely  concealed  from 
the  eye  of  the  superficial  examiner  and  exhumed 
only  by  the  skill  and  patience  of  the  delving  student. 

In  reading  these  records,  care  must  be  taken  to 
examine  them,  as  far  as  possible,  by  the  light  of  their 
own  days  and  to  refrain  from  reading  into  them  the 
ideas   and   thoughts   of   a   later   age.      The   common 


8  LEADING    CASES    IN    THE    BIBLE. 

method  of  the  lawyer  in  presenting  a  brief  to  the 
Court,  where,  for  the  purpose  of  bringing  out  a  prin- 
ciple or  drawing  an  analogy,  he  cites  cases  of  early 
and  later  dates,  statutes  and  judicial  dicta  cunningly 
mingled  without  regard  for  their  chronological  order, 
may  serve  a  practical  purpose,  but  it  is  fatal  to  a 
true  knowledge  of  the  history  and  principles  of  juris- 
prudence. It  has  been  well  said  that  ''the  warning 
can  never  be  too  often  repeated  that  the  grand  source 
of  mistake  in  questions  of  jurisprudence  is  the  im- 
pression that  those  reasons  which  actuate  us  at  the 
present  moment  in  the  maintenance  of  an  existing 
institution  have  necessarily  anything  in  common  with 
the  sentiment  in  which  the  institution  originated." 
In  the  biblical  records  the  mere  contiguity  of  the 
material  is  absolutely  no  indication  of  its  true  chrono- 
logical order.  There  can  be  little  doubt,  for  example, 
that  the  law  concerning  the  Sabbath  as  recorded  in 
Exodus  XXXIV,  21,  is  hundreds  of  years  older  than 
the  law  recorded  in  Exodus  XXXI,  12-17.  The  com- 
mon biblical  chronologies,  as  taught  in  Sunday  schools 
and  as  set  forth  in  current  religious  literature,  are 


INTRODUCTION.  9 

absolutely  worthless.  They  assume  the  literal  exact- 
ness of  the  words  of  the  Bible,  of  the  present  order  of 
the  biblical  books  and  of  the  events  recorded  in  them. 
Intelligent  criticism  has  proven  that  neither  the  words 
nor  the  order  of  the  books  nor  their  content  are  cor- 
rect beyond  doubt,  and  that,  in  part  at  least,  their 
historical  accuracy  is  exceptionable,  above  all  in  mat- 
ters of  chronology.  The  Book  of  Judges  contains 
records  which  in  many  instances  are  older  by  cen- 
turies than  many  of  the  events  recorded  in  the  earlier 
books.  The  traditions  in  the  Book  of  Genesis  have 
at  least  two,  if  not  three,  original  sources;  part  of 
them  are  of  remote  antiquity  and  part  of  a  much 
later  date.  Much  of  the  material  in  the  Bible  is 
legend  and  folklore,  stories  told  by  herdsmen  of  the 
desert  and  simple  farmers  of  ancient  Canaan,  and 
upon  this  basis  attempts  have  been  made  these  many 
centuries  to  construct  a  history.  The  discretion 
necessary  for  the  proper  writing  of  history  can  never 
be  realized  by  the  orthodox  theologian  who  accepts 
as  literally  true  the  legend  of  Jonah  and  the  whale 
or  of  Eve  and  the  serpent,   nor  by  the  "higher" 


10  LEADING    CASES    IN    THE    BIBLE. 

critic,    armed    with    knowledge    of    philology,    but 
ignorant  of  economics  and  law. 

But  although  a  story  may  be  mere  fable,  poetry  or 
mythology,  it  may,  nevertheless,  be  deeply  interesting 
to  the  lawyer  and  sociologist,  for  all  men  who  speak 
and  write  are  unconsciously  testifying  to  the  influ- 
ences by  which  they  are  surrounded.  The  Nomad 
uses  phrases  in  his  stories  which  reflect  his  views  of 
custom  and  law  and  picture  the  institutions  by  which 
he  is  surrounded  and  in  which  he  moves  and  has  his 
being;  his  testimony  thus  recorded  is  of  the  highest 
value  because  it  is  unconscious  testimony.  When 
the  primitive  orientals  entertained  each  other  with 
the  story  of  the  events  of  the  Garden  of  Eden,  it  is 
quite  certain  that  their  purpose  was  not  to  explain 
the  method  of  investigation  pursued  by  the  Deity  as 
recorded  in  that  story,  and  yet  this  legend  reflects 
the  notions  of  justice,  some  of  the  methods  of  pro- 
cedure, the  status  of  women  and  of  slaves  and  other 
matters  relating  to  a  very  early  stage  in  the  history 
of  the  Hebrew  Nomad.  Although  the  Court  of 
Heaven  mentioned  in  the  Book  of  Job  is  mythical,  its 


INTRODUCTION.  H 

procedure  is  not;  for  it  was  the  procedure  familiar 
to  the  writer  of  the  book  and  by  him  projected  into 
the  High  Court  of  Heaven. 

Nearly  all  of  the  legends  recorded  in  the  Bible  are 
etiological  in  their  nature,  but  their  legal  value  is  not 
only  not  impaired  thereby  but  rather  increased.  The 
great  Bible  critics  of  modem  times  have  passed  by 
the  legal  aspect  of  these  records  for  quite  obvious 
reasons.  Nearly  all  of  the  leading  biblical  scholars 
are  theologians,  although  very  liberal  ones.  In  fact 
when  reading  their  books  one  wonders  how  they  can 
remain  theologians  in  good  standing  in  any  church 
that  has  any  notions  on  the  subject  of  biblical  criti- 
cism. In  Germany,  for  instance,  Professor  Noesgen, 
of  Rostock,  is  said  to  be  distinguished  ''as  the  only 
German  University  theologian  who  still  believes  in 
the  literal  inspiration  of  the  scriptures."  The  most 
highly  educated  churchmen  of  the  German,  English 
and  American  churches  repudiate  doctrines  of  their 
faith  which  have  always  been  considered  of  funda- 
mental importance.  In  spite  of  all  this,  liberal  though 
they  are,  they  are  not  lawyers  and,  therefore,  have 


12  LEADING    CASES    IN    THE    BIBLE. 

never  been  especially  interested  in  or  attracted  to  the 
legal  aspect  of  the  subject  matter  of  their  studies. 
The  result  of  this  has  been  a  one-sided  development 
of  biblical  knowledge,  based  largely  on  mere  philo- 
logical theories,  and  the  substitution  of  a  pseudo- 
scientific  dogmatism  for  the  dogmatism  of  orthodox 
interpretation. 

The  true  ethical  meaning  of  the  biblical  stories 
can  never  be  grasped  without  a  thorough  foreknowl- 
edge of  the  real  facts  related  so  far  as  they  can  be 
deduced  or  reconstructed,  and  without  an  accurate 
conception  of  the  motives  that  govern  the  action  of 
the  personages  of  whom  these  stories  are  told.  It  has 
become  a  matter  of  commonplace  knowledge  among 
educated  men  that  there  is  no  such  thing  as  absolute 
morality.  The  historical  method  of  investigation  ap- 
plied in  the  realm  of  ethics  has  shown  that  morality, 
like  all  other  elements  of  civilization,  has  had  a 
growth  and  that  its  standard  varied  from  age  to  age 
until  it  reached  its  full  fruition  in  the  system  of 
ethics  to  be  found  in  the  Bible  of  the  Hebrews,  in  the 
analects  of  Confucius  and  in  the  teachings  of  Buddha. 


INTRODUCTION.  13 

These  three  systems  of  ethics  were  perfected  at  some 
time  between  the  eighth  and  the  fifth  centuries  before 
the  Christian  era.  Since  then  the  problem  has  been 
one  of  mere  application  of  these  old  principles  to  new 
conditions,  and  practically  nothing  has  been  added  to 
our  conception  of  right  and  wrong.  A  knowledge 
of  the  biblical  legends  that  antedate  the  latest  period 
in  the  development  of  the  conception  of  right  and 
wrong  is  important  as  an  illustration  of  the  growth 
of  this  conception.  Illustrations  may  be  found 
among  the  early  customs  of  European  nations  which 
show  that  even  in  comparatively  late  times  the  taking 
of  human  life  was  merely  an  offense  that  might  be 
condoned  upon  payment  of  a  certain  amount  of 
money  or  a  certain  number  of  cattle.  It  would  be 
unjust  to  condemn  as  immoral  the  age  in  which  so 
low  a  value  is  placed  on  human  life.  The  point  to 
be  remembered  is  that  among  the  people  who  held 
this  comparatively  low  view  it  was  the  highest  view, 
and,  therefore,  what  from  our  point  of  view  is 
immoral  was  from  their  point  of  view  quite  moral 
and  proper. 


14  LEADING    CASES    IN    THE    BIBLE. 

These  Leading  Cases  are  merely  raw  material 
which  may  be  of  use  to  the  student  of  the  history  of 
civilization  and  the  philosophy  of  law.  They  have 
been  arranged  in  the  order  of  their  appearance  in 
the  Bible.  Five  of  them  involve  the  legal  status  of 
women  and  in  them  may  be  traced  the  growth  of  the 
law  on  this  subject  from  the  exercise  of  patria 
potestas  by  Jephthah  and  Laban,  through  an  inter- 
mediate stage,  illustrated  in  the  case  of  Ruth,  show- 
ing the  right  of  women  to  transmit  title  to  property, 
to  the  important  case  of  Zelophehad's  daughters,  in 
which  the  legal  status  of  women  is  vastly  improved, 
they  appear  as  plaintiffs  in  legal  proceedings,  and, 
through  the  precedent  established,  modify  the  law 
of  intestate  succession.  In  the  case  of  Jacob  and 
Laban  there  is  also  some  indication  of  a  state  of 
society,  the  matriarchate,  in  which  power  and  prop- 
erty are  transmitted  through  the  females  instead  of 
the  males. 

The  development  of  courts  of  law  and  their  pro- 
cedure is  illustrated  by  many  of  these  cases.  In  the 
ease  of  Adam  and  Eve  we  see  the  patriarch  exer- 


INTRODUCTION.  15 

cising  his  power  and  authority  in  conducting  a  ju- 
dicial investigation.  His  method  of  examination  is 
capricious,  and  in  inflicting  punishment  he  does  not 
hesitate  to  modify  the  law  which  he  himself  has  laid 
down,  for  in  the  early  patriarchal  society,  as  in 
ancient  Rome,  the  law  of  the  family  was  the  will  of 
the  patriarch.  He  was  responsible  to  no  man  for 
his  actions  and  was  restrained  only  by  that  innate 
reverence  for  precedent  which  has,  at  all  times,  but 
most  especially  in  primitive  ages,  characterized  the 
human  mind.  The  existence  of  a  family  court  for 
the  purpose  of  settling  disputes  between  clansmen 
is  hinted  at  in  the  case  of  Jacob  and  Laban.  The 
Court  of  the  Elders,  the  ancient  Hebrew  Curia,  based 
originally  on  the  consanguinity  of  its  members  and 
later  on  their  territorial  propinquity,  exercises  juris- 
diction in  the  cases  of  the  Son  of  Shelomith,  of  Jere- 
miah and  of  Boaz  and  witnesses  the  conveyance  of 
the  Cave  of  Machpelah  to  Abraham.  In  the  case  of 
Boaz  it  is  likewise  merely  a  court  called  together  to 
attest  the  validity  of  a  legal  transaction.  In  these 
cases   the    Court   of   the   Elders   is   not   seen   in   its 


16  LEADING    CASES    IN   THE    BIBLE. 

primitive  form;  there  are  indications  that  its  an- 
cient jurisdiction  was  modified  by  the  interference 
of  royalty.  In  the  case  of  the  Son  of  Shelomith, 
Moses  represents  quasi  royal  power;  he  sits  with  the 
court  and  indeed  is  the  most  important  figure  in  it. 
In  the  trial  of  Jeremiah,  the  Elders  have  been  rele- 
gated to  the  rear  and  the  royal  princes  occupy  the 
foreground.  In  the  case  of  Naboth,  the  Elders  are 
the  mere  tools  by  means  of  which  the  forms  of  law 
are  complied  with,  to  enable  royal  aggression  to  sub- 
vert the  law  of  the  land.  It  is  the  story  of  the 
Senate  of  Rome  in  the  days  of  the  Caesars;  an  insti- 
tution of  great  antiquity  is  preserved,  but  its  real 
authority  has  departed  and  it  is  dominated  by  the 
power  of  the  crown.  The  origin  of  this  royal  power 
may  be  seen  in  the  case  of  Adonijah,  Abiathar  and 
Joab,  where  the  judge  is  the  King  himself,  exercising 
sway  in  the  most  arbitrary  manner,  not  even  respect- 
ing the  ancient  right  of  sanctuary.  This  royal  power 
existed  concurrently  with  the  ancient  jurisdiction  of 
the  Elders,  except  that  in  the  immediate  vicinity  of 
the  throne,    in   the   city   containing  the   royal   resi- 


INTRODUCTION.  1 7 

dence,  the  jurisdiction  of  the  Elders  was  naturally 
dwarfed  into  insignificance  by  the  great  power  con- 
centrated in  the  hands  of  the  monarch.  No  patriarch, 
however  liberal,  would  have  dared  to  go  as  far  as  the 
King  in  the  exercise  of  his  authority.  But  between 
the  patriarch  and  the  King  lies  the  history  of  cen- 
turies which  changed  little  family  organizations  and 
tribes  into  constituent  bodies  of  a  great  nation,  and 
w^ith  the  newer  and  broader  political  basis  came 
progressive  departure  from  tradition,  weakened  re- 
spect for  the  influence  of  the  law  and  the  exercise 
of  autocratic  power  resulting  in  all  sorts  of  usurpa- 
tions. The  Courts  of  the  Elders  existing  contem- 
poraneously with  the  kings  were  hardly  more  than 
mere  anachronisms,  survivals  of  a  former  vigorous 
institution,  now  existing  with  merely  a  shadow  of  its 
former  power.  But  with  the  decline  of  the  royal 
power  and  the  destruction  of  the  Jewish  state  in  the 
fifth  century  before  the  Christian  era,  the  old  au- 
thority of  the  courts  of  the  Elders,  long  in  abeyance, 
revived,  and  in  the  period  after  the  return  from  the 
Babylonian  captivity  this  ancient  institution  was  re- 


18  LEADING    CASES    IN    THE    BIBLE. 

established  and  became  the  archetype  of  the  two 
great  courts  of  the  Jews,  the  "Men  of  the  Great 
Synagogue"  and  the  "Sanhedrin. " 

SimilarJy  the  growth  of  other  laws  and  legal  insti- 
tutions may  thus  be  traced  from  stage  to  stage,  pre- 
paring the  way  for  that  magnificent  code  of  the  law 
in  which  high  principles  of  justice  and  refined 
theories  of  law  and  procedure  finally  culminated. 
This  is  the  code  of  the  Mishnah  as  expanded  and 
interpreted  in  the  Gemarah,  both  of  which  together 
constitute  the  Talmud. 


THE    CASE    OF    ADAM   AND    EVE. 
Genesis  II,  4 -III,  24. 

The  legend  of  Adam  and  Eve  is  one  of  a  class  of 
legends  well  known  to  the  student  of  folklore,  in 
which  men  in  the  early  stages  of  civilization,  under 
the  influence  of  primitive  ideas,  told  the  stories  which 
attempt  to  account  for  the  beginnings  of  things. 

The  story  of  Adam  and  Eve  is  obviously  not  his- 
torical; but,  despite  its  legendary  character,  it  con- 
tains elements  interesting  to  the  sociologist  and  the 
lawyer.  Its  suggestions  of  legal  procedure  and  sub- 
stantive law  reflect  the  views  of  the  people  among 
whom  the  legend  was  current,  and  by  whom  it  was 
finally  reduced  to  writing.  There  are  two  accounts 
of  the  legend  in  the  Book  of  Genesis.  In  the  first 
account  (I,  26-29)  the  man  and  the  woman  were 
created  at  the  same  time  and  there  is  no  reference 
to  the  Garden  of  Eden.  The  second  account  is  found 
in  the  second  and  third  chapters,  and  it  is  this  record 

that  is  now  made  the  subject  of  inquiry. 

19 


20  LEADING    CASES    IN    THE    BIBLE. 

Taking  the  story  as  though  it  were  a  record  of 
actual  facts,  an  examination  gives  us  the  following 
history  of  the  case. 

God  made  man  of  the  dust  of  the  ground  and 
breathed  into  his  nostrils  the  breath  of  life.  He 
then  planted  a  garden  in  Eden  and  placed  the  man 
in  charge  of  it  "  to  dress  it  and  to  keep  it. ' '  Among 
the  many  trees  of  this  garden,  fair  in  appearance  and 
good  for  food,  there  was  the  tree  "of  the  knowledge 
of  good  and  evil,"  concerning  which  God  laid  the 
following  command  upon  the  man,  namely,  "Of 
every  tree  of  the  garden  thou  mayest  freely  eat,  but 
of  the  tree  of  the  knowledge  of  good  and  evil,  thou 
shalt  not  eat  of  it;  for  in  the  day  that  thou  eatest 
thereof  thou  shalt  surely  die."  Thereafter  God 
created  a  woman  and  gave  her  to  the  man  to  be  his 
wife.  To  the  woman  came  a  serpent  and  tempted 
her  to  eat  of  the  forbidden  tree.  To  this  end  the 
serpent  said  to  the  woman,  "Hath  God  indeed  said, 
Ye  shall  not  eat  of  every  tree  of  the  garden  ? ' '  And 
the  woman  said  imto  the  serpent,  "We  may  eat  of 
the  fruit  of  the  trees  of  the  garden :  but  of  the  fruit 


ADAM    AND    EVE.  21 

of  the  tree  which  is  in  the  midst  of  the  garden,  God 
hath  said,  Ye  shall  not  eat  of  it,  neither  shall  ye 
touch  it,  lest  ye  die."  The  serpent  said  unto  the 
woman,  "Ye  will  surely  not  die;  for  God  doth  know, 
that,  on  the  day  ye  eat  thereof,  your  eyes  will  be 
opened,  and  ye  will  be  as  gods,  knowing  good  and 
evil."  ''And  when  the  woman  saw  that  the  tree  was 
good  for  food,  and  that  it  was  pleasant  to  the  eyes, 
and  a  tree  desirable  to  look  upon,  she  took  of  its 
fruit,  and  did  eat,  and  gave  also  unto  her  husband 
with  her,  and  he  did  eat.  And  the  eyes  of  them  both 
were  opened,  and  they  knew  that  they  were  naked; 
and  they  sewed  fig-leaves  together,  and  made  them- 
selves aprons.  And  they  heard  the  sound  of  the 
Lord  God  walking  in  the  garden  in  the  cool  of  the 
day;  and  the  man  and  his  wife  hid  themselves  from 
the  presence  of  the  Lord  God  amongst  the  trees  of 
the  garden." 

Thus  far  the  history  of  the  case  as  recorded,  before 
the  commencement  of  the  investigation.  Although 
the  command  of  God  not  to  eat  of  the  tree  of  the 
knowledge  of  good  and  evil  had  been  given  to  Adam 


22  LEADING    CASES    IN    THE    BIBLE. 

before  the  creation  of  Eve,  Eve  and  the  serpent,  in 
discussing  this  command,  speak  of  it  as  though  it 
had  been  directed  to  both  Adam  and  Eve.  God  had 
said  to  Adam,  "Tliou  shalt  not  eat  of  it,"  but  the 
serpent  said  to  the  woman,  "Ye  shall  not  eat,"  and 
the  woman,  likewise  assuming  that  the  command  was 
addressed  to  her  as  well  as  to  Adam,  quotes  the  com- 
mand, '*Ye  shall  not  eat  of  it,  neither  shall  ye  touch 
it,  lest  ye  die,"  although  there  is  nothing  in  the 
original  command  concerning  touching  the  tree. 
This  statement  indicates  the  introduction  of  the  per- 
sonal equation  into  the  testimony  of  witnesses.  It 
may  have  been  a  mere  unintentional  exaggeration, 
or  it  may  have  been  the  result  of  the  practice  which 
actually  grew  out  of  the  original  commandment.  It 
can  easily  be  conceived  that  if  a  person  is  directed 
not  to  eat  of  the  fruit  of  a  certain  tree  on  pain  of 
death,  that  he  would,  for  his  own  protection,  estab- 
lish the  practice  of  not  even  touching  the  tree,  lest 
he  be  thereby  led  into  temptation  to  commit  the 
crime.  It  is  a  case  which  illustrates  the  Rabbinical 
maxim,  "Make  a  fence  about  the  law,"  and  finds  its 


ADAM    AND    EVE.  S3 

justification    in    the    inherent    weakness    of    human 
nature. 

The  record  then  proceeds  to  give  an  account  of  the 
trial,  conviction  and  sentence  of  the  offenders,  "And 
the  Lord  God  called  unto  the  man  and  said  unto 
him.  Where  art  thou?  And  he  said,  I  heard  thy 
sound  in  the  garden  and  I  was  afraid  because  I  was 
naked,  and  I  hid  myself.  And  he  said.  Who  told 
thee  that  thou  wast  naked?  Hast  thou  eaten  of  the 
tree  whereof  I  commanded  thee  that  thou  shouldest 
not  eat?  And  the  man  said,  The  woman,  whom 
thou  gavest  to  be  with  me,  she  gave  me  of  the  tree, 
and  I  did  eat.  And  the  Lord  God  said  unto  the 
woman,  What  is  this  that  thou  hast  done?  And  the 
woman  said,  The  serpent  beguiled  me  and  I  did  eat. ' ' 
Thereupon  God,  without  making  any  inquiry  of  the 
serpent  and  without  hearing  anything  that  it  might 
have  said  in  its  defense,  punished  it  by  decreeing, 
"Because  thou  hast  done  this,  thou  art  cursed  above 
all  cattle  and  above  every  beast  of  the  field;  upon 
thy  belly  shalt  thou  go,  and  dust  shalt  thou  eat  all 
the  days  of  thy  life;  and  I  will  put  enmity  between 


24  LEADING    CASES    IN    THE    BIBLE. 

thee  and  the  woman,  and  between  thy  seed  and  her 
seed ;  he  shall  bruise  thy  head  and  thou  shalt  wound 
his  heel."  Then  turning  to  the  woman  he  pro- 
nounced judgment  against  her  in  these  words,  "I 
will  greatly  multiply  thy  pain  and  thy  conception; 
in  pain  thou  shalt  bring  forth  children;  and  thy 
desire  shall  be  to  thy  husband  and  he  shall  rule 
over  thee."  Finally  turning  to  the  man  he  said, 
"Because  thou  hast  hearkened  unto  the  voice  of  thy 
wife,  and  hast  eaten  of  the  tree  of  which  I  com- 
manded thee,  saying.  Thou  shalt  not  eat  of  it ;  cursed 
is  the  ground  for  thy  sake;  in  sorrow  shalt  thou  eat 
of  it  all  the  days  of  thy  life.  Thorns  also  and  thistles 
shall  it  bring  forth  to  thee,  and  thou  shalt  eat  the 
herb  of  the  field.  In  the  sweat  of  thy  face  shalt  thou 
eat  bread  till  thou  return  unto  the  ground,  for  out 
of  it  wast  thou  taken;  for  dust  thou  art,  and  unto 
dust  shalt  thou  return." 

The  first  question  to  be  determined  is,  what  crime 
was  committed  and  what  was  the  relative  degree  of 
guilt  of  the  three  offenders.  Since  the  command  not 
to  eat  of  the  tree  bad  been  given  to  Adam  alone,  he. 


ADAM    AND    EVE.  25 

strictly  speaking,  was  the  only  law-breaker.  The 
woman,  although  her  talk  with  the  serpent  implies 
that  she  also  was  bound  to  obey  this  command,  was, 
strictly  speaking,  merely  an  accessory  before  the  fact. 
The  serpent  was  only  morally  responsible  and,  as  its 
only  fault  was  in  inducing  Eve  to  eat  of  the  tree,  it 
was  legally  guilty  of  no  offense  at  all.  If  Eve  had 
not  induced  Adam  to  do  the  same,  no  crime  would 
have  been  committed;  so  that  the  serpent's  action  is 
seen  to  have  been  merely  the  remote  cause  of  Adam's 
breach  of  the  law. 

But  it  must  be  remembered  that  this  legend  re- 
flects a  state  of  society  and  a  system  of  jurisprudence 
in  which  such  nice  distinctions  did  not  exist.  God 
tries  this  case  in  the  manner  of  the  oriental  patriarch 
investigating  the  misconduct  of  some  member  of  the 
family  or  tribe,  bound  by  no  other  law  than  that 
which  he  himself  made,  and  restrained  only  by  more 
or  less  vague  traditions  of  which  he  himself  was  the 
sole  authoritative  expounder.  Hence  his  method  of 
procedure  in  the  investigation  of  the  case  would  be 
determmed  solely  by  the  exigencies  of  the  occasion. 


26  LEADING    CASES    IN    THE    BIBLE. 

In  every  age  and  among  every  people  conceptions 
of  the  Deity  are  influenced  by  actual  conditions  of 
life  and  society.  On  the  one  hand  God  is  thought  of 
by  the  African  savage  as  a  piece  of  wood  carved  into 
some  resemblance  to  an  ugly  mask,  and  on  the  other 
hand  by  a  Matthew  Arnold  as  "The  eternal,  not  our- 
selves, which  makes  for  righteousness. ' '  In  the  Bible 
God  is  frequently  pictured  as  the  judge,  who,  as  in 
the  legend  of  Adam  and  Eve,  dispenses  justice  in 
the  free-handed  manner  of  the  tribal  chieftain.  In 
the  story  of  Job,  written  at  a  much  later  period  and 
under  the  influence  of  an  entirely  different  civiliza- 
tion, he  is  pictured  as  an  oriental  monarch  sur- 
rounded by  his  court  and  the  great  officers  of  the 
crown,  listening  to  the  charges  of  a  public  prosecutor. 
In  the  case  of  Zelophehad's  daughters  he  is  described 
as  a  supreme  judge  to  whom  the  record  of  a  case  is 
submitted  for  an  opinion,  who  renders  a  decree  and 
then  by  virtue  of  his  legislative  authority  enlarges 
his  decree  into  a  general  law.  In  the  Talmud  God 
is  often  represented  as  sitting  to  do  justice  in  the 
Supreme  Court  of  Heaven  modeled  upon  the  plan  of 


ADAM    AND    EVE.  27 

the  great  Sanhedrin  of  seventy-one  judges,  hearing 
the  evidence,  examining  the  witnesses  and  proceeding 
in  every  way  in  accordance  with  the  procedure  that 
was  followed  by  the  Sanhedrin.  As  these  views  of 
the  Divine  Judge  differ  at  different  times  among  the 
Jewish  people  so  they  vary  among  different  peoples. 
Mention  need  only  be  made  of  the  different  concep- 
tions of  the  Deity  held  by  Sophocles,  by  Milton  and 
by  Goethe. 

The  oriental  tribal  chieftain  administered  justice 
in  the  manner  described  in  the  case  of  Adam  and 
Eve.  He  reached  conclusions  in  a  swift  and  ready 
manner  and  meted  out  the  punishment  that  he  con- 
sidered proper  under  the  circumstances,  often  re- 
versing his  own  decrees.  The  swiftness  with  which 
the  result  is  reached  in  this  case  may  be  likened  to 
Solomon's  judgment,  or  to  the  case  of  Cain.  God  in 
this  legend  takes  the  place  of  the  tribal  chieftain  and 
the  persons  represented  by  Adam,  Eve  and  the  ser- 
pent are  members  of  his  family  or  tribe  whose  con- 
duet  is  under  investigation  by  him.  The  manner  in 
which  this  investigation  is  conducted  is  characteristic. 


28  LEADING    CASES    IN   THE    BIBLE. 

The  principal  offender,  Adam,  is  brought  before  his 
judge  and  is  immediately  subjected  to  a  cross-exam- 
ination whereby  he  is  compelled  to  criminate  himself. 
The  very  question,  ''Hast  thou  eaten  of  the  tree 
whereof  I  commanded  thee  that  thou  shouldest  not 
eat?"  was  intended  to  elicit  confession,  for  when 
Adam  confronted  his  judge  he  showed  obvious  signs 
of  guilt.  The  legend  states  that  after  Adam  and 
Eve  had  transgressed,  their  eyes  were  opened  and 
"they  knew  that  they  were  naked."  This  is  the 
belated  wisdom  of  the  criminal  after  the  crime  has 
been  committed.  He  then  sees  its  consequences  and 
he  fears,  as  in  Cain 's  case,  that  every  one  that  findeth 
him  will  slay  him,  for  his  guilt  seems  to  him  to  be 
writ  large  on  his  forehead.  This  is  the  nakedness 
that  he  seeks  to  cover,  and  in  attempting  it  he,  by  his 
very  manner,  bears  testimony  to  his  guilt.  ''He 
covered,  but  his  robe  uncovered  more." 

Adam  admitted  his  guilt,  but  pleaded  subtly  and 
boldly,  "The  woman,  whom  thou  gavest  to  be  with 
me,  she  gave  me  of  the  tree  and  I  did  eat. ' '  He  thus 
indirectly  charges  God  himself  with  being  responsible 


ADAM   AND   EVE.  29 

for  the  crime  in  having  placed  the  tempter  by  his 
side  in  the  form  of  a  woman  whom  he  had  given  him 
to  be  his  wife ;  and  it  may  be  that  this  fact  was  con- 
sidered by  the  judge  subsequently  in  passing  sen- 
tence, for  it  will  be  remembered  that,  although  the 
punishment  for  Adam's  transgression  was  to  have 
been  death,  there  evidently  were  mitigating  circum- 
stances which,  in  the  mind  of  the  judge,  warranted 
a  lesser  punishment.  In  turning  to  the  woman  and 
interrogating  her,  God  makes  no  reference  to  the  com- 
mission of  any  crime  by  her,  his  question  is  simply 
an  indignant,  "What  is  this  that  thou  hast  done?" 
and  the  woman  meekly  responds,  "The  serpent  be- 
guiled me  and  I  did  eat, ' ' 

In  this  legend  the  serpent,  condemned  unheard, 
has  the  same  status  as  the  slave  in  the  patriarchal 
household;  it  is  not  sui  juris  and,  therefore,  has  no 
right  to  be  heard  at  all.  Although  legally  the  ser- 
pent is  the  least  offender,  it  receives  the  greatest 
punishment,  since  its  moral  obliquity  set  in  motion 
the  series  of  causes  which  resulted  in  the  breach  of 
the  law.     The  severity  of  its  punishment,  therefore, 


30  LEADING    CASES    IN    THE    BIBLE. 

is  the  result  of  the  moral  rather  than  the  legal  nature 
of  its  offense.  Furthermore,  if  we  consider  the 
status  of  the  slave  in  the  patriarchal  household,  we 
can  easily  understand  how  the  indignation  of  the 
tribal  chieftain  might  pour  itself  out  first  upon  the 
helpless  slave  and  so  incline  him  to  lessen  the  punish- 
ment of  the  more  guilty  member  of  his  household. 

The  offense  of  the  serpent  was  a  species  of  seduc- 
tion which  made  it  possible  for  Eve  to  become  an 
accessory  to  Adam's  crime,  and  its  punishment  was 
clearly  excessive.  Although  it  had  been  more  subtle 
than  any  beast  of  the  field  and  had  been  permitted 
to  hold  free  intercourse  with  its  human  companions, 
it  was  now  degraded  below  every  beast  of  the  field, 
condemned  to  crawl  on  its  belly,  eat  dust  and  be  in  a 
state  of  perpetual  warfare  with  the  human  species. 
Thus  for  some  trivial  offense  the  house  slave  of  the 
patriarch  might  be  degraded  below  the  most  menial 
slave  of  the  field.  The  punishment  of  Eve  was  like- 
wise excessive ;  her  solicitude  for  her  husband  led  her, 
unselfishly  enough,  to  want  him  to  participate  in  the 
enjoyment  of  her  new-found  pleasure.      Adam  was 


ADAM    AND    EVE.  31 

legally  and  morally  the  real  offender.  The  command 
had  been  laid  upon  him  directly,  and  he  broke  it  in 
yielding  most  weakly  to  temptation.  Yet  in  spite  of 
this  the  woman,  who  had  been  his  equal,  was  now 
made  his  subordinate,  "thy  desire  shall  be  to  thy 
husband  and  he  shall  rule  over  thee."  The  real 
offender  was  by  this  decree  elevated  above  the  com- 
paratively innocent  cause  of  his  crime.  According 
to  the  ideas  prevalent  in  ancient  patriarchal  society, 
the  status  of  woman  was  comparatively  low.  At 
some  periods,  she  was  merely  the  purchased  chattel 
of  her  husband  and  master,  and  at  all  times,  in  that 
state  of  society,  power  and  authority  were  the  heri- 
tage of  the  males.  This  being  the  actual  state  of 
affairs  an  attempt  is  made  to  account  for  it  in  this 
legend  by  making  the  subordination  of  the  woman  a 
punishment  for  crime  committed  by  her. 

In  sentencing  Adam,  God  uses  a  phrase  which  indi- 
cates that  he  is  the  real  law-breaker,  "Because  thou 
.  .  .  hast  eaten  of  the  tree  of  which  I  commanded 
thee  saying.  Thou  shalt  not  eat  of  it  .  .  .,"  a  phrase 
not  used  in  the  sentence  of  either  the  woman  or  the 
serpent. 


32  LEADING    CASES    IN    THE    BIBLE. 

According  to  the  original  commandment  the  pun- 
ishment for  Adam's  transgression  was  death;  "for 
in  the  day  that  thou  eatest  thereof  thou  shalt  surely 
die."  Yet  in  sentencing  Adam  the  law  was  not 
strictly  applied,  for  instead  of  being  condemned  to 
death  he  was  condemned  to  work  for  a  living,  and 
it  seems  that  part  of  the  wisdom  of  the  serpent  con- 
sisted in  its  ability  to  anticipate  this,  for  when  the 
woman  told  the  serpent  that  God  had  said,  "Ye 
shall  not  eat  of  it,  neither  shall  ye  touch  it,  lest  ye 
die,"  the  serpent  answered  her  saying,  "Ye  shall  not 
surely  die."  It  may  be  that  the  influence  of  Eve 
was  considered  a  mitigating  circumstance.  This  sen- 
tence is  the  archetype  of  the  abolition  of  capital 
punishment  and  the  substitution  of  life  imprison- 
ment at  hard  labor. 

For  centuries  this  legend  has  been  read  as  literally 
true,  churches  and  religions  have  founded  infallible 
doctrines  upon  it,  it  has  become  the  basis  for  many  of 
the  fundamental  doctrines  of  current  theology,  and 
yet  it  is  merely  an  ancient  fable  told  by  primitive 
herdsmen  far  back  at  the  dawn  of  history,  interesting 


ADAM    AND    EVE.  33 

to  the  lawyer  because  it  reflects  ideas  of  law  and 
justice  in  an  early  period  of  the  development  of  the 
Jewish  race,  whose  institutions  have  profoundly  af- 
fected the  law  and  ethics  of  civilized  society. 


THE    MURDER    OF    ABEL. 

Genesis  IV,  1-16. 

The  record  of  the  first  murder  ease  is  found  in  the 
fourth  chapter  of  Genesis.  The  history  of  the  crime, 
its  motive,  the  trial  and  sentence  are  all  given  in  a 
few  terse  phrases,  clearly  enough  to  enable  us,  with 
little  effort,  to  reconstruct  the  entire  incident.  The 
facts  of  the  case  are  as  follows:  Cain  and  Abel  were 
brothers ;  Cain  was  an  agriculturist  and  Abel  a  herds- 
man. At  a  certain  time  each  of  them  brought  an 
offering  unto  the  Lord;  Cain's  offering  consisted  of 
the  fruits  of  the  ground  and  Abel's  offering  of  the 
firstlings  of  his  flock  and  the  fat  thereof.  For  some 
reason  not  given,  the  Lord  accepted  the  offering  of 
Abel  and  turned  from  the  offering  of  Cain,  "and 
Cain  was  very  wroth  and  his  countenance  fell." 
His  anger  appears  to  have  turned  against  his  brother, 
and  although  the  Lord  warned  him  against  yielding 
to  it,  he  bided  his  time  and  "it  came  to  pass  when 
they  were  in  the  field  that  Cain  rose  up  against  Abel 

34 


THE    MURDER    OF    ABEL.  35 

his  brother  and  slew  him,"  This  is  the  record  of 
the  case  in  all  its  simplicity ;  a  crime,  common  enough 
at  all  times,  committed  under  the  influence  of  jeal- 
ousy, hatred  and  anger. 

The  suggestion  made  in  the  case  of  Adam  and  Eve, 
that  the  popular  imagination  conceived  the  Deity 
administering  justice  in  the  manner  of  the  patri- 
archal chieftain  of  that  time  applies  to  this  case  also. 
Here  God  cautioned  the  enraged  Cain  to  govern  his 
anger,  lest  it  be  translated  into  action,  but  Cain  re- 
mained deaf  to  the  voice  of  conscience  and,  taking 
advantage  of  the  opportunity  when  he  was  alone  with 
Abel  in  the  field,  killed  him.  The  legend  gives  no 
reason  why  the  offering  of  Abel  was  accepted  and  the 
offering  of  Cain  refused,  and  assumes  that  there  was 
no  sufficient  justification  for  the  crime.  But  what- 
ever may  have  been  the  reason  for  God's  refusal  of 
Cain's  offering,  it  can  hardly  have  any  bearing  on 
the  legal  aspect  of  the  case.  Comparative  sociology 
and  folklore  suggest  various  reasons  with  which  at 
present  we  are  not  concerned. 

It  may  be  pointed  out  in  passing  that  cattle  herd- 


36  LEADING    CASES    IN    THE    BIBLE. 

ing  and  agriculture  were  among  the  first  occupations 
of  civilized  men.  In  the  earlier  and  ruder  state  of 
society,  hunting  was  the  only  source  of  livelihood. 
There  is  something  suggestive  in  the  fact  that  Cain, 
the  agriculturist,  killed  Abel,  the  herdsman,  for  this 
veils  a  great  sociological  truth  and  translated  into 
modern  language  may  be  taken  to  mean  that  the 
farmer  supplanted  the  herdsman;  just  as  the  story 
of  the  sale  of  Esau's  birthright  suggests  the  fact 
that  the  herdsman  had  supplanted  the  hunter. 

The  only  witness  to  the  crime  was  the  blood  of  the 
murdered  Abel,  which,  according  to  the  primitive 
notion  of  the  time,  had  a  voice  and  cried  out  for 
vengeance,  and  was  heard  by  God,  who  appears  for 
the  purpose  of  conducting  an  investigation.  He 
summons  Cain  to  appear  before  him  and,  as  in 
Adam's  case,  immediately  subjects  him  to  a  cross- 
examination.  The  only  facts  that  could  have  been 
known  were  these,  that  Cain  and  Abel  were  seen 
going  out  to  the  field  together  and  that  Cain  returned 
without  his  brother,  of  whom  no  trace  was  found 
except  the  blood  stains  in  the  field.      Suspicion  nat- 


THE    MURDER    OF    ABEL.  37 

urally  fell  upon  Cain,  who  was  brought  before  his 
judge,  and  addressed  by  one  of  those  short  incisive 
questions  which  are  the  delight  of  the  Cadi  and 
the  admiration  of  the  people,  "Where  is  Abel  thy 
brother?"  When  Adam  was  asked,  "Hast  thou 
eaten  of  the  tree  whereof  I  commanded  thee  that 
thou  shouldest  not  eat?"  he  promptly  confessed. 
When  Cain  was  asked,  ' '  Where  is  Abel  thy  brother  ? ' ' 
he  answered,  "I  know  not.  Am  I  my  brother's 
keeper?"  This  answer  naturally  strengthened  the 
suspicion  that  he  was  the  murderer.  An  innocent 
man  accused  of  fratricide  would  hardly  have  given 
an  answer  like  this,  which  not  only  breathed  defiance 
and  showed  an  unexpected  and,  therefore,  highly 
significant  heartlessness,  but  even  alluded  sarcastic- 
ally to  his  dead  brother's  occupation  as  a  keeper  of 
sheep,  whose  duty  it  was  to  guard  them  from  raven- 
ing wild  animals.  "Am  I  my  brother's  keeper?" 
asked  Cain,  sarcastically.  "Is  it  my  duty  to  look 
after  him  as  he  looks  after  his  sheep?"  Cain  made 
no  further  attempt  to  defend  himself,  apparently 
relying  on  the  fact  than  no  witnesses  could  be  pro- 


38  LEADING    CASES    IN    THE    BIBLE. 

dueed  against  him,  and  that  silence  was  his  best  de- 
fense. But  he  forgot  that  he  left  a  witness  crying 
out  against  him  in  the  field,  and  his  denial  of  the 
crime  is  brushed  aside  in  the  next  question  put  to 
him,  "What  hast  thou  done?  The  voice  of  thy 
brother's  blood  crieth  unto  me  from  the  ground." 

The  ancient  notion  of  the  cry  of  the  blood  may 
be  traced  to  the  belief  that  the  blood  contained  the 
spirit  of  life  and  that  it  was  a  vital  thing.  Hence 
the  blood  became  an  object  of  awe.  It  was  used  for 
certain  sacred  and  solemn  purposes,  such  as  sealing 
a  covenant,  establishing  relations  equivalent  to  kin- 
ship and  the  like,  and  the  law  of  the  three  great 
Semitic  religions,  Judaism,  Christianity  and  Moham- 
medanism, provides  that  blood  shall  not  be  eaten. 
(Genesis  IX,  4;  Acts  XV,  29;  Koran  V,  4.) 

It  can  hardly  be  said  that  Cain  was  tried  for  his 
crime,  because  the  method  of  examination  was  the 
merest  rudiment  of  what  subsequently  became  an 
orderly  system  of  procedure  in  judicial  investigation. 
As  his  guilt  was  assumed  from  the  circumstances  of 
the  case  and,  beyond  a  bare  denial,  he  made  no  at- 


THE    MURDER    OF    ABEL.  39 

tempt  to  defend  himself,  the  sentence  of  the  Court 
followed  immediately.  His  punishment  was  not 
death,  but  exile. 

The  first  statute  on  the  subject  of  homicide  is 
recorded  in  Genesis  IX,  6,  ''Whoso  sheddeth  man's 
blood,  by  man  shall  his  blood  be  shed. ' '  Cain  feared 
death,  saying,  "every  one  that  findeth  me  will  slay 
me " ;  but  this  had  no  reference  to  lawful  punishment 
for  his  crime,  but  to  the  fact  that  by  being  exiled  he 
was  outlawed  and  compelled  to  wander  away  from 
the  settled  habitations  of  men  into  the  surrounding 
wilderness,  where  there  was  neither  family,  nor  law, 
nor  God  to  protect  him.  The  sentence  was  pro- 
nounced in  these  words,  "And  now  art  thou  cursed 
from  the  earth,  which  hath  opened  her  mouth  to 
receive  thy  brother's  blood  from  thy  hand.  When 
thou  tillest  the  ground  it  shall  not  henceforth  yield 
unto  thee  her  strength;  a  fugitive  and  a  vagabond 
shalt  thou  be  in  the  earth. ' '  After  this  sentence  was 
pronounced  Cain  no  longer  denied  the  crime,  but 
impliedly  confessed,  saying,  "My  punishment  is 
greater  than  I  can  bear.      Behold,  thou  hast  driven 


40  LEADING    CASES    IN    THE    BIBLE. 

me  out  this  day  from  the  face  of  the  earth ;  and  from 
thy  face  shall  I  be  hid ;  and  I  shall  be  a  fugitive  and 
a  vagabond  in  the  earth;  and  it  shall  come  to  pass 
that  every  one  that  findeth  me  shall  slay  me."  And 
the  Lord  said  unto  him,  "Therefore,  whosoever  slay- 
eth  Cain  vengeance  shall  be  taken  on  him  sevenfold." 
And  the  Lord  set  a  mark  upon  Cain,  lest  any  one 
finding  him  should  kill  him.  And  Cain  went  out 
from  the  presence  of  the  Lord  and  dwelt  in  the  land 
of  Nod,  on  the  east  of  Eden. 

It  is  difficult,  if  not  impossible,  for  us,  who  travel 
fearlessly  to  the  ends  of  the  earth,  to  understand 
what  exile  meant  in  those  primitive  days.  Then 
every  stranger  was  an  enemy,  and  a  stranger  in  a 
strange  land  lived  in  constant  fear  not  only  of  his 
mortal  foes,  but  of  unfriendly  demons  and  spirits 
with  whose  worship  he  was  unfamiliar  and  whom  he 
did  not  know  how  to  placate.  Banishment  from  the 
tilled  soil  meant  not  only  outlawry  and  separation 
from  friends  and  neighbors,  but  also  removal  from 
the  protection  of  the  Deity.  A  primitive  notion  of 
God  localized  him.     God  dwelt  on  the  tilled  land,  and 


THE    MURDER    OF    ABEL.  41 

in  the  wilderness  round  about,  other  powers  always 
malignant  Avere  supreme.  This  primitive  idea  grew 
into  the  notion  of  a  national  God  whose  jurisdiction 
and  power  were  coterminous  with  the  national  bound- 
aries. Exile,  therefore,  in  the  early,  as  well  as  the 
later,  period  was  a  punishment  worse  than  death,  for 
it  condemned  a  man  to  live  without  family,  friends, 
law  or  God. 

At  a  later  period  in  the  development  of  ancient 
Jewish  law  decrees  of  outlawry  were  modified  and 
the  convict  was  not  subjected  to  punishment  at  the 
hands  of  every  man,  but  was  made  an  outlaw  only 
so  far  as  the  kinsmen  of  the  person  injured  or  killed 
by  him  were  concerned.  The  avenger  of  the  blood, 
as  he  was  called,  was  the  kinsman  who  punished  the 
crime  by  taking  vengeance  on  the  criminal,  and  even 
after  courts  had  been  established  and  a  regular  sys- 
tem of  judicial  procedure  followed,  there  was  a  long 
period  in  which  the  Court  had  neither  sheriff,  nor 
executioner,  nor  keeper  of  the  jail  to  punish  the 
criminal.  He  was  simply  turned  over  to  the  avenging 
kinsmen,  who  inflicted  the  punishment  for  the  crime. 


42  LEADING    CASES   IN   THE    BIBLE. 

When  Cain  said,  ' '  I  shall  be  a  fugitive  and  a  vaga- 
bond in  the  earth  and  it  shall  come  to  pass  that  every 
one  that  findeth  me  shall  slay  me,"  he  did  not  have 
in  mind  a  kinsman  who  would  be  avenger  of  the 
blood,  but  he  thought  of  himself  as  an  outlaw  in  the 
wilderness  where  every  man's  hand  would  be  turned 
against  him.  As  it  was  obviously  not  intended  that 
Cain  should  be  put  to  death  for  his  crime,  his  fears 
were  allayed  by  the  mark  set  upon  him.  The  mark 
of  Cain  is  commonly  spoken  of  as  a  brand  marking 
him  as  a  murderer  and  condemned  of  God,  and  the 
phrase  has  gone  into  common  speech  as  the  "brand 
of  Cain."  But  this  mark  was  fixed  upon  him  in 
order  to  show  all  the  world  that  his  life  must  be 
spared,  and  it  seems  from  the  context  that  this  mark 
was  put  on  him  at  his  own  request,  in  order  to  obviate 
the  danger  of  his  being  killed  by  any  one  that  found 
him.  A  man  thus  marked  was  personally  inviolate, 
he  belonged  to  the  Deity.  In  addition  to  the  mark 
Cain  had  the  further  assurance,  which  practically 
guaranteed  his  immunity,  that  "whosoever  slayeth 
Cain  vengeance  shall  be  taken  on  him  seven-fold." 


THE    MURDER    OF    ABEL.  43 

Seven  kinsmen  of  the  murderer  would  be  called  upon 
to  pay  for  the  blood  of  Cain.  An  illustration  of  this 
custom  is  found  in  the  case  of  the  Gibeonites  who 
appealed  to  King  David  to  allow  them  to  take  ven- 
geance for  the  blood  of  their  kinsmen  shed  by  King 
Saul,  and  they  said,  ''Let  seven  men  of  his  sons  be 
delivered  unto  us  and  we  will  hang  them  up."  (2 
Samuel  XXI,  6.) 

The  record  of  this  case  closes  with  the  words,  ' '  And 
Cain  went  out  from  the  presence  of  the  Lord  and 
dwelt  in  the  land  of  Nod,  on  the  east  of  Eden." 
From  which  it  appears  that  the  sentence  of  banish- 
ment was  great  rather  because  of  removal  from  the 
presence  of  the  Lord,  in  other  words,  from  home  and 
household  gods,  than  because  of  the  inability  to  find 
a  resting  place  elsewhere,  for  Cain  dwelt  in  the  land 
of  Nod. 


THE  PURCHASE  OF  THE  CAVE  OF 
MACHPELAH. 

Genesis  XXIII,  1-20. 

The  twenty-third  chapter  of  Genesis  contains  the 
record  of  an  ancient  conveyance  of  land,  possessing 
characteristics  similar  to  those  of  the  Roman  and 
the  Common  Law,  yet  differing  from  them  materially 
in  form.  The  old  forms  of  procedure  here  recorded 
are  the  groundwork  upon  which  modern  systems  have 
been  established.  They  speak  of  the  days  when  the 
tribal  ownership  of  land  was  still  in  force,  when  there 
were  no  written  records,  and  when  the  public  as- 
sembly, the  town  or  village  council  of  elders,  was 
required  to  sanction  the  act  of  conveyance. 

In  those  days  formality  was  greater  than  in  our 
times.  Since,  in  the  absence  of  records,  the  memory 
of  witnesses  was  relied  upon,  there  arose,  in  order 
to  impress  the  transaction  indelibly  upon  the  minds 
of  witnesses,  the  long  and  complicated  formalities 
common    to    all    ancient    systems    of    jurisprudence. 

44 


PURCHASE  OF  CAVE  OF  MACHPELAH.     45 

Some  of  these  formalities  were  made  necessary  by  the 
religious  element  that  entered  into  every  transaction, 
notably  the  case  with  certain  symbolic  acts  at  Roman 
law,  and  with  many  cases  in  the  Bible  also.  In  the 
conveyance  of  the  land  to  Abraham,  however,  the 
formality  seems  to  have  been  simply  an  ordinary 
business  transaction.  There  is  no  evidence  in  this 
record  that  the  conveyance  was  reduced  to  writing 
at  the  time,  but  the  writer  who  recorded  the  tradi- 
tion in  the  book  of  Genesis  used  a  formula  of  con- 
veyance such  as  was  probably  used  in  legal  documents 
in  his  time  and  which  bears  some  similarity  to  the 
forms  found  in  the  Babylonian  contract  tablets. 

Abraham,  a  nomadic  Hebrew  chieftain,  had  wan- 
dered into  the  neighborhood  of  Hebron,  a  city  well 
known  in  later  times  in  Jewish  history,  but  at  that 
time  belonging  to  the  Hittites,  the  "sons  of  Heth." 
With  him  were  his  wife  Sarah,  his  children,  his  cattle 
and  his  slaves,  the  entire  familia  of  the  patriarch. 
''And  Sarah  was  a  hundred  and  seven  and  twenty 
years  old;  these  were  the  years  of  the  life  of  Sarah, 
And  Sarah  died  in  Kirjath  Arba  (the  same  is  Heb- 


46  LEADING    CASES    IN    THE    BIBLE. 

ron),  in  the  land  of  Canaan:  and  Abraham  came  to 
mourn  for  Sarah  and  to  weep  for  her.  And  Abra- 
ham stood  up  from  before  his  dead, ' '  and  went  down 
to  the  gate  of  the  city  where  the  town  council  of  the 
Hittites  was  in  session.  There  the  elders  of  the  Hit- 
tites,  the  "people  of  the  land,"  in  the  presence  of  all 
who  came  and  went  through  the  forum  at  the  city 
gate,  transacted  the  public  business  of  their  com- 
munity. Abraham  was  recognized  by  them  as  a  dis- 
tinguished chieftain  not  of  their  tribe,  temporarily 
dwelling  within  their  tribal  domain,  and  was  accorded 
the  honor  of  a  seat  in  the  midst  of  their  assembly. 
A  favorable  opportunity  during  the  session  of  the 
council  having  presented  itself  to  Abraham,  he  ad- 
dressed them  "and  spoke  unto  the  sons  of  Heth, 
saying,  I  am  a  stranger  and  a  sojourner  with  you ; 
give  me  a  possession  of  a  burying-place  with  you, 
that  I  may  bury  my  dead  out  of  my  sight." 

Since  Abraham  was  an  alien,  he  could  not  acquire 
property  rights  in  land  which  was  tribal  property, 
held  and  used,  it  is  true,  in  severalty  by  the  members 
of  the  tribe,  but  inalienable,  especially  to  a  stranger, 


PURCHASE  OF  CAVE  OF  MACHPELAH.    47 

except  by  common  consent  given  by  the  tribal  council. 
Our  land  laws,  restricting  the  right  of  aliens  to 
acquire  real  estate,  are  survivals  of  the  days  when 
the  alien  was  an  enemy,  and  could  not  be  permitted 
to  settle  permanently,  without  the  consent  of  the 
people,  which  consent  was  practically  a  decree  of 
naturalization.  It  was  to  the  people,  therefore,  and 
not  to  any  individual  that  Abraham  addressed  him- 
self. 

"And  the  sons  of  Heth  answered  Abraham,  saying 
unto  him.  Hearken  unto  us,  my  lord:  thou  art  a 
mighty  prince  among  us;  in  the  choice  of  our  sep- 
ulchres bury  thy  dead;  none  of  us  shall  withhold 
from  thee  his  sepulchre,  so  that  thou  mayest  bury 
thy  dead.  And  Abraham  stood  up,  and  bowed  him- 
self to  the  people  of  the  land,  to  the  sons  of  Heth. 
And  he  spoke  to  them,  saying,  if  it  be  your  mind 
that  I  should  bury  my  dead  out  of  my  sight,  hearken 
imto  me,  and  entreat  for  me  to  Ephron  the  son  of 
Zohar,  that  he  may  give  me  the  cave  of  Machpelah, 
which  he  hath,  which  is  in  the  end  of  his  field. ' ' 

Although  Abraham  knew  that  the  owner  of  the 


48  LEADING   CASES   IN   THE   BIBLE. 

place  he  desired  was  there  among  the  members  of  the 
council,  he  was  prevented  by  the  formalities  of  the 
occasion  from  addressing  his  request  to  Ephron  per- 
sonally. It  will  be  noted  that  his  first  request  and 
the  answer  of  the  council  contained  no  intimation 
of  his  intention  to  purchase  the  place  for  money. 
This  is  usually  attributed  to  the  politeness  of  the 
parties  concerned.  But  it  was  not  mere  politeness 
that  governed  the  formalities  of  this  occasion.  It 
seems  rather  to  have  been  the  formal  way  of  striking 
a  bargain  by  question  and  answer,  until  the  final 
consummation  of  the  matter,  by  acceptance  of  the 
last  offer.  And  the  absence  of  the  price  in  the  open- 
ing phrases,  the  offer  to  give  the  land  without  price, 
the  counter-offer  insisting  upon  payment,  and  the 
final  mentioning  of  the  price  casually,  as  it  were,  are 
all  part  of  the  regular  formal  act  preliminary  to  the 
transfer  of  the  title.  The  peculiar  use  of  the  phrases 
"hearken  unto  me"  and  "hearken  unto  us"  (oyez) 
by  each  of  the  parties  in  making  his  proposition,  or 
counter-proposition,  seems  to  indicate  that  they  were 
not  used  merely  to  attract  the  attention  of  the  per- 


PURCHASE  OF  CAVE  OF  MACHPELAH.     49 

son  addressed,  but  were  formal  words  necessary  to 
the  legality  of  the  transaction,  which  ended  by 
Abraham  "hearkening  unto  Ephron,"  i.  e.,  accepting 
his  offer. 

Abraham,  having  thus  indirectly  called  upon  the 
prospective  grantor  of  the  property  to  speak,  adds, 
"for  as  much  money  as  it  is  worth  he  shall  give  it  to 
me  for  a  possession  of  a  burying-place  among  you. 
Now  Ephron  was  sitting  among  the  sons  of  Heth." 
He  was  one  of  the  council  and  immediately  took  up 
the  word  when  Abraham  had  concluded.  "And 
Ephron  the  Hittite  answered  Abraham  in  the  hearing 
of  the  sons  of  Heth,  of  all  that  went  in  at  the  gate 
of  his  city  (i.  e.,  of  all  the  lawful  tribesmen),  saying, 
Nay  my  Lord  hearken  unto  me:  the  field  give  I  to 
thee,  and  the  cave  that  is  therein,  I  give  it  to  thee; 
in  the  presence  of  the  sons  of  my  people  give  I  it  thee, 
bury  thy  dead."  It  is  probable  that  nothing  would 
have  disconcerted  Ephron  so  much  as  to  have  had 
Abraham  accept  his  apparently  generous  offer;  and 
indeed  it  is  likely  that  had  Abraham  said,  "I  accept," 
it  would  not  have  been  binding  on  Ephron,  because 

4 


50  LEADING    CASES    IN    THE    BIBLE. 

he  had  not  said,  "without  price  I  give  it  to  thee." 
The  omission  of  these  formal  words  led  Abraham 
to  understand  that  the  land  was  not  to  be  given 
without  price,  and  that  this  important  point  had  yet 
to  be  fixed. 

After  this  statement  of  Ephron,  "Abraham  bowed 
down  himself  before  the  people  of  the  land. ' '  Why  ? 
Out  of  thankfulness  for  the  generous  offer  of 
Ephron?  If  so,  why  did  he  not  bow  to  Ephron? 
This  bow  meant  to  indicate  that  he  was  prepared 
with  his  next  counter-proposition,  to  be  made  to 
Ephron  in  the  presence  of  the  council.  The  bow 
and  the  courteous  words  addressed  to  the  judge  by 
the  lawyer  before  addressing  the  jury  is  a  ceremony 
somewhat  akin  to  the  rising  and  the  bow  of  Abraham 
to  the  council.  Abraham  invariably  rose  and  sa- 
luted the  council  before  speaking.  He  arose  to  make 
his  opening  request.  Then  after  they  had  given  their 
consent  to  his  acquisition  of  a  burial  place  he  again 
"stood  up  and  bowed,"  before  making  his  next  offer, 
and,  lastly,  after  Ephron  had  spoken  he  again  * '  bowed 
down,"  before  making  his  final  proposition.      "And 


PURCHASE  01'  CAVE  OF  MACHPELAH.    51 

he  spoke  unto  Ephrou  in  the  hearing  of  the  people 
of  the  land,  saying,  But  if  thou  wilt,  I  pray  thee 
hearken  unto  me;  I  will  give  thee  money  for  the 
field ;  take  it  of  me,  and  I  will  bury  my  dead  there. ' ' 
Abraham  no  longer  speaks  of  the  cave,  or  the 
burial  place  that  he  desired,  but  of  the  whole  field. 
He  wanted  a  "possession  for  a  burial  place."  This 
meant,  not  merely  the  six  feet  of  ground  required, 
or  even  the  cave  in  which  the  body  was  entombed, 
but  an  estate  of  inheritance,  in  which  the  family  tomb 
would  be  placed  and  which  would  be  sanctified  by 
the  dead  buried  there,  and  become  a  permanent  pos- 
session in  the  family.  The  evidence  furnished  by 
the  grave  of  the  ancestor  buried  in  the  family  estate 
was  the  strongest  that  could  be  adduced  to  prove 
title,  and  there  is  strength  in  the  theory  that  this 
legend  was  cherished  by  the  Israelites  as  proof  of  the 
lawful  acquisition  by  their  ancestors  of  territorial 
rights  in  Palestine,  thus  justifying  their  subsequent 
incursion  and  acquisition  of  the  land,  by  force  of 
arms.  ''And  Epliron  answered  Abraham  saying 
unto  him,  my  lord,  hearken  unto  me,  the  land  is 


52  LEADING    CASES    IN    THE    BIBLE. 

worth  four  hundred  shekels  of  silver;  what  is  that 
between  thee  and  me?  Only  bury  thy  dead." 
Although  four  hundred  shekels  of  silver  was  a  for- 
tune in  those  days,  Ephron  apparently  speaks  of  it 
as  a  mere  bagatelle.  But  Abraham  understood 
Ephron.  This  was  the  formal  hint  that  the  price 
was  fixed  and  the  negotiation  about  to  close.  Hence 
Abraham  "hearkened"  unto  Ephron,  or,  as  it  is 
translated  in  the  Leeser  Bible,  ''Abraham  under- 
stood the  meaning  of  Ephron."  And,  indeed,  after 
Ephron  had  fixed  the  price,  there  was  nothing  more 
to  be  said, 

"Abraham  weighed  to  Ephron  the  silver  which  he 
had  named  in  the  hearing  of  the  sons  of  Heth  four 
hundred  shekels  of  silver,  current  money  with  the 
merchant,"  The  weighing  was  probably  done  by 
the  public  lihripens,  a  functionary  well  known  to  us 
through  the  Roman  law.  The  shekel  here  mentioned 
is  not  a  coin,  but  a  weight.  The  word  "shekel" 
means  weight.  At  a  later  time  a  certain  weight  of 
silver  became  the  shekel,  the  standard  weight  of 
money,  very  miich  as  a  certain  weight  of  English 


PUECHASE  OF  CAVE  OF  MACHPELAH.     53 

gold  became  the  pound.  The  act  of  weighing  and 
handing  over  the  silver  ended  the  formality,  and 
thereby  the  land  became  a  possession  for  an  inherit- 
ance unto  Abraham  forever. 

The  chronicler  in  the  book  of  Genesis  was  a  care- 
ful scrivener.  He  seems  to  take  pleasure  in  record- 
ing the  transaction  with  technical  nicety.  ''And 
the  field  of  Ephron  which  was  in  Machpelah,  which 
was  before  Mamre,  the  field  and  the  cave  which  was 
therein,  and  all  the  trees  which  were  in  the  field,  that 
were  in  all  the  borders  round  about,  were  made  sure 
unto  Abraham  for  a  possession  in  the  presence  of  the 
sons  of  Heth,before  all  that  went  in  at  the  gate  of 
his  city."  Very  carefully  does  he  enumerate  the 
field,  the  cave,  the  trees,  even  all  those  in  all  its 
borders,  lest  any  right  to  fell  wood  remain  in  the 
grantor.  All  these,  he  says,  were  conveyed  unto 
Abraham  before  the  public  council  of  the  Hittites, 
by  whose  presence  the  conveyance  was  made  sure. 
Thereupon  Abraham  took  possession  and  exercised 
his  first  act  of  ownership.  "And  after  this  Abra- 
ham buried  Sarah  his  wife  in  the  cave  of  the  field 


54  LEADING    CASES    IN    THE    BIBLE. 

of  Machpelah,  before  Mamre :  the  same  is  Hebron  in 
the  land  of  Canaan."  It  seems  that  this  record  was 
made  long  after  the  event,  for  the  memory  of  a  later 
generation  had  to  be  refreshed  by  the  statement  that 
the  place  known  to  them  as  Hebron  had  formerly  been 
called  Kirjath  Arba,  which  was  before  Mamre.  Both 
the  latter  names  were  merely  vague  memories  of 
ancient  days. 

The  record  in  the  book  of  Genesis  then  ends  with  a 
clause  like  a  clause  of  warranty.  ' '  And  the  field  and 
the  cave  that  is  therein,  were  made  sure  unto  Abra- 
ham for  a  possession  as  a  burying  place  hy  the  sons 
of  Heth."  In  the  presence  of  the  sons  of  Heth  the 
formal  transfer  of  Ephron's  rights  was  made,  and 
by  the  sons  of  Heth,  representing  the  whole  com- 
munity, the  title  was  made  sure  unto  Abraham. 
Thus  after  having  received  a  grant  of  the  land  by 
solemn  covenant  from  God,  the  lord  paramount  (Gen. 
XV,  18,  etc.),  specially  mentioning  the  land  of  the 
Hittites,  Abraham  fortified  his  title  by  a  conveyance 
from  the  terre  tenants, 


TPIE    SALE    OF    ESAU'S    BIRTHRIGHT. 
Genesis  XXV,  29-34. 

The  simple  and  well-known  story  of  the  sale  of 
Esau's  birthright  to  Jacob  contains  much  that  is 
hidden  from  the  eye  of  the  superficial  reader.  As  it 
is  commonly  taught  in  Sunday  schools  it  becomes  the 
vehicle  for  the  communication  of  a  certain  moral 
truth  and  not  less  frequently  for  the  communication 
of  a  certain  prejudice  against  the  race  of  which 
Jacob  is  the  eponym. 

The  story  contains  an  interesting  chapter  of  ancient 
law.  It  likewise  reflects  the  historic  fact  that  the 
Israelites  supplanted  and  conquered  the  Edomites, 
who  were  at  one  time  their  superiors  in  men  and  in 
territory,  and  of  whose  military  prowess  there  are 
many  Biblical  legends.  The  legend  of  Esau  and 
Jacob  represents  them  as  huntsmen  and  herdsmen. 
As  the  Bible  puts  it,  "Esau  was  an  expert  hunter, 
a  man  of  the  field,  and  Jacob  was  a  plain  man  dwell- 
ing in  tents. ' '     This  description  well  fits  the  nomadic 

66 


56  LEADING    CASES    IN    THE    BIBLE. 

Edomites,  rough  skinned,  with  the  odor  of  the  fields 
and  woods  on  their  garments,  and  the  herdsmen  of 
Israel  dwelling  in  tents  and  engaged  in  a  peaceful 
occupation  which  required  certain  qualities  of  pru- 
dence and  forethought,  qualities  which  distinguished 
the  Jacob  of  the  legend  from  his  heedless  and  rough 
brother.  Esau  represented  the  old  order  of  things 
which  was  passing  away,  and  Jacob  represented  the 
new  order  that  was  taking  its  place.  The  primitive 
nomads  were  hunters  relying  for  their  sustenance 
upon  their  skill  with  weapons  of  chase.  In  the 
course  of  their  ordinary  evolution  they  were  con- 
verted from  huntsmen  into  herdsmen,  even  as  the 
latter  were  afterwards  converted  from  herdsmen  into 
agriculturists  (see  "Murder  of  Abel")  and  as,  in 
our  days,  we  see  the  agriculturists  converted  into 
industrialists. 

The  sociological  meaning  of  the  story  of  Jacob  and 
Esau  and  the  purchase  of  Esau's  birthright  by  Jacob 
is  that  the  herdsmen  supplanted  the  huntsmen,  and 
in  that  sense  of  the  word  Jacob  is  properly  named 
"  Supplanter, "  which  is  one  of  the  meanings  of  the 
Hebrew  name. 


SALE    OF    ESAU'S    BIRTHRIGHT.  57 

In  the  patriarchal  family  immemorial  custom  gave 
to  the  eldest  born  certain  rights  over  the  other  chil- 
dren. There  is  some  evidence  in  the  biblical  records 
of  an  earlier  custom  according  to  which  the  youngest 
born  enjoys  these  rights  and,  indeed,  this  very  legend 
of  Jacob  and  Esau,  by  which  Jacob,  the  younger, 
secures  the  birthright,  is  cited  as  evidence  of  the 
survival  of  ultimogeniture  in  the  period  of  primo- 
geniture. However  this  may  be,  in  a  patriarchal 
family  the  eldest  born  succeeded  the  father  as  head 
of  the  family,  and  by  virtue  of  his  birthright  ob- 
tained a  larger  and  better  share  of  the  patrimonial 
estate.  Until  fixed  by  statute  there  was  no  uniform 
custom  governing  the  birthright  and  its  incidents, 
and,  indeed,  the  most  contradictory  evidence  may  be 
found  in  the  Bible.  The  birthright  was  inalienable, 
and  it  could  be  sold;  it  was  enjoyed  by  the  eldest 
born,  it  was  enjoyed  by  the  youngest  born  and  it  was 
disposed  of  by  the  will  of  the  father.  In  the  present 
case  it  seems  that  Esau  enjoyed  the  birthright  as 
first  born  and  had  the  power  to  dispose  of  it  to  an- 
other, member  of  the  family.     The  record  of  this  sale 


58  LEADING    CASES    IN    THE    BIBLE. 

is  given  in  a  few  interesting  sentences.  ''And  Jacob 
at  one  time  boiled  pottage,  and  Esau  came  from  the 
field  and  he  was  faint.  And  Esau  said  to  Jacob, 
Let  me  swallow  down  I  pray  thee  some  of  yonder 
red  pottage  for  I  am  faint;  therefore  was  his  name 
called  Edom  (the  red  one)  and  Jacob  said.  Sell  me 
this  day  thy  birthright.  And  Esau  said.  Behold  I 
am  going  to  die,  and  what  profit  then  can  the  birth- 
right be  to  me?  And  Jacob  said,  Swear  to  me  this 
day;  and  he  swore  unto  him  and  he  sold  his  birth- 
right unto  Jacob.  Then  Jacob  gave  Esau  bread  and 
pottage  of  lentils  and  he  did  eat  and  drink  and  he 
rose  up  and  went  his  way;  thus  Esau  despised  the 
birthright. ' ' 

Esau,  tired  and  faint  from  his  hunt,  threw  himself 
into  Jacob's  tent  and  burst  out  with  the  words,  "Let 
me  swallow  some  of  that  red  stuff  for  I  am  faint." 
Jacob,  who  had  probably  long  been  considering  the 
acquisition  of  Esau's  birthright  and  justifying  his 
longing  for  it  by  contrasting  his  .sober  and  prudent 
method  of  life  with  that  of  his  boorish  and  heedless 
brother,  took  advantage  of  the  opportunity  and  said 


SALE    OF    ESAU'S    BIRTHRIGHT.  59 

to  him,  "Sell  me  this  day  thy  birthright."  From 
the  modern  point  of  view  it  would  have  been  fairer 
on  Jacob 's  part  to  have  fed  Esau  first  and  purchased 
his  birthright  afterwards.  Jacob  seems  to  have  had 
no  scruples  about  the  ethical  aspect  of  the  question, 
nor  did  Esau  question  the  propriety  of  Jacob's  de- 
mand. It  was  only  afterwards  that  he  showed  his 
bitterness  against  Jacob,  who  had  secured  the  best  of 
the  bargain. 

Esau's  attitude  toward  his  rights  as  first  born  was 
that  of  the  rough  man  of  the  woods.  He  said, 
"Behold  I  am  going  to  die,"  which,  translated  into 
modern  phrase,  means,  I  am  so  faint  with  hunger 
that  I  may  die  this  very  minute.  "And  what  profit 
shall  this  birthright  do  to  me."  His  words  reflect 
the  attitude  of  rude  men  towards  the  rights  estab- 
lished by  a  higher  order  of  society.  It  is  the  con- 
tempt of  the  barbarian  for  the  products  of  civil- 
ization. 

The  birthright  was  an  intangible  thing  that  could 
not  pass  by  delivery.  Had  this  sale  taken  place 
publicly  it  would  in  all  probability  have  been  accom- 


60  LEADING    CASES    IN    THE    BIBLE. 

panied  by  some  symbolical  act  to  give  it  validity. 
Since  there  were  no  witnesses  present  to  bind  the 
bargain  recourse  was  had  to  the  solemnity  of  the 
oath.  Jacob  said  to  Esau,  ''Swear  to  me  this  day," 
and  by  the  oath  which  Esau  swore  he  sold  his  birth- 
right to  Jacob.  The  execution  of  this  contract  of 
sale  is  generally  considered  somewhat  informal,  and 
yet,  upon  examination  we  find  all  the  necessary  for- 
malities except  the  presence  of  witnesses. 

The  inadequacy  of  the  consideration  had  no  bear- 
ing whatever  upon  the  legality  of  the  sale.  The  fact 
that  even  Esau,  who  subsequently  believed  himself 
to  have  been  cheated,  recognized  the  validity  of  the 
sale,  is  to  be  credited  not  so  much  to  his  honesty  as 
to  his  fear  of  invoking  the  wrath  of  the  higher 
powers  by  breaking  his  oath. 

In  ancient  days  before  the  world  became  commer- 
cial, when  wealth  consisted  largely  of  cattle  and  the 
products  of  agriculture,  buying  and  cheating  were 
almost  synonymous  terms.  It  was  taken  for  granted 
when  men  bought  and  sold  that  one  or  the  other  of 
them  was  being  outwitted.     The  contempt  with  which 


SALE    OF    ESAU'S    BIRTHRIGHT.  61 

certain  classes  of  society  still  look  upon  those  who 
"are  in  trade"  may  be  a  survival  of  this  feeling  that 
trading  was  essentially  impossible  for  persons  with 
a  nice  sense  of  honor. 

The  consummation  of  the  contract  was  the  oath,  an 
invocation  of  the  higher  powers  to  attest  the  act. 
The  force  and  effect  of  an  oath  in  ancient  days  was 
much  greater  than  it  is  to-day,  because  the  higher 
power  was  presumed  to  be  present  and  to  participate 
in  the  transaction  as  a  third  party  to  the  contract. 
This  is  especially  seen  in  the  making  of  covenants 
which  are  accompanied  by  a  sacrifice  and  other 
solemn  formalities,  in  addition  to  the  oath  calling 
upon  the  ever-present  Deity  to  witness. 

A  Jewish  court  of  law  under  its  "general  equity 
powers"  might  readily  have  been  able  to  relieve 
Esau,  and  compel  Jacob  to  restore  the  rights  which 
he  had  thus  acquired.  "If  thou  sell  aught  unto  thy 
neighbor  or  buy  aught  of  thy  neighbor's  hand,  ye 
shall  not  overreach  one  the  other"  (Lev.  XXV,  14). 
"Thy  money  shalt  thou  not  give  him  upon  usury 
nor  lend  him  thy  victuals  for  increase"    (Id.   37). 


62  LEADING    CASES    IN    THE    BIBLE. 

But  courts  of  law  did  not  exist  in  the  days  of  Jacob 
and  Esau,  and  the  legislation  above  quoted  was  not 
formulated  until  a  much  later  time.  Had  Esau 
appealed  to  Isaac,  his  father,  to  relieve  him  from  the 
obligation  of  his  oath  he  would,  no  doubt,  have  been 
met  with  a  prompt  and  just  refusal,  for,  according 
to  the  legal  notion  of  those  times,  the  oath  was  in- 
violable and  the  contract  bound  by  it  irrevocable. 

In  reading  these  ancient  stories  it  must  always  be 
remembered  by  whom  and  for  whom  they  were  told. 
This  legend  was  told  before  it  was  written  and,  no 
doubt,  was  told  as  a  joke  on  the  stupid  Esau,  who 
is  gulled  by  the  clever  Jacob  of  his  precious  birth- 
right for  a  dish  of  lentils.  To  read  this  story  as 
though  it  had  been  intended  to  justify  itself  ethically 
is  to  miss  its  point  entirely. 


IN    THE    MATTER    OF    ISAAC'S    WILL. 
Genesis  XXVII,  1 -XXVIII,  9. 

Sir  Henry  Sumner  Maine  in  his  "Ancient  Law" 
expresses  the  opinion  that  testamentary  disposition 
of  property,  as  known  to  modern  jurisprudence,  is 
a  creature  of  Roman  Law.  In  speaking  of  the  bless- 
ing of  Jacob  and  Esau  by  Isaac  he  says,  "the  bless- 
ing mentioned  in  the  scriptural  history  of  Isaac  and 
his  sons  has  sometimes  been  spoken  of  as  a  will,  but 
it  seems  rather  to  have  been  a  mode  of  naming  an 
eldest  son."  Assuming  that  Maine's  opinion  is  cor- 
rect, it  may  w^ell  be  asked  what  is  the  effect  of 
"naming  an  eldest  son?"  If  there  are  any  property 
rights  connected  with  the  right  of  primogeniture, 
then  "naming  an  eldest  son"  might  be  fairly  con- 
strued to  be  a  quasi-testamentary  disposition  of  such 
rights. 

The  facts  of  the  case  as  reported  are  in  substance 
as  follows:  Isaac  and  Rebecca  had  twin  sons,  of 
whom  Esau  was  the  first-born  and  Jacob  the  younger. 

63 


64  LEADING    OASES    IN    THE    BIBLE. 

Esau  was  a  hunter,  and,  it  appears,  had  gained  his 
father's  affection  because  of  his  skill  in  the  chase; 
but  Eebecca  preferred  her  younger  son  because  of  his 
domestic  habits  of  life. 

In  his  old  age  Isaac  had  grown  blind,  and  fearing 
the  approach  of  death  he  determined  to  make  provi- 
sion for  his  favorite,  Esau,  by  giving  him  his  "bless- 
ing." In  order  to  mark  this  occasion  he  directed 
Esau  to  go  out  to  the  chase  and  bring  him  some 
venison  such  as  he  loved,  "that  my  soul  may  bless 
thee  before  I  die."  He  thus  meant  to  indicate  by 
this  last  solemn  and  formal  act,  not  merely  his  pref- 
erence for  his  eldest  son,  but  also  the  satisfaction 
and  the  pleasure  that  he  had  derived  from  Esau 
throughout  his  life.  Rebecca,  who  had  overheard 
this  request  and  who  was  probably  acquainted  with 
the  fact  that  Jacob  had  secured  Esau's  birthright 
by  purchase,  determined,  by  taking  advantage  of  her 
husband's  blindness,  to  secure  the  coveted  blessing 
for  him  also.  She  ordered  Jacob  to  fetch  two  kids 
of  the  flock,  from  which  to  make  a  savory  dish  to  be 
carried  in  to  Isaac  "that  he  may  eat;  for  the  sake 


THE    MATTER    OF    ISAAC'S    WILL.  65 

that  he  may  bless  thee  before  his  death."  Jacob, 
although  anxious  to  obtain  the  blessing,  was  not  quite 
satisfied  with  the  method  proposed  and  ventured  to 
express  the  fear  that  his  father  might  curse  him  in- 
stead of  blessing  him,  but  his  mother's  solemn  words, 
"Upon  me  be  thy  curse  my  son,"  reassured  him,  for 
by  this  assumption  of  responsibility,  the  curse,  if 
uttered  by  the  father,  would  fall  upon  her.  This 
vicarious  assumption  of  responsibility  is  connected 
with  the  ancient  idea  of  sacrifice,  according  to  which 
the  sacrificial  animal  bore  the  sins  of  the  person  who 
offered  it.  Rebecca  thereupon  prepared  the  food 
and  then  used  Esau's  garments  and  the  skins  of  the 
kids  to  disguise  Jacob,  in  order  that  the  father  might 
not  recognize  him  when  he  appeared  with  his  gift. 

"When  Jacob  appeared  before  his  father  he  said, 
"My  father,"  and  Isaac  said,  "Here  am  I.  Who  art 
thou,  my  son?"  and  Jacob  said  unto  his  father,  "I 
am  Esau,  thy  first-born.  I  have  done  as  thou  didst 
speak  to  me ;  arise,  I  pray  thee,  sit  here,  and  eat  of 
my  venison  that  thy  soul  may  bless  me." 

And  Isaac  said  unto  his  son,  "How  is  it  that  thou 
hast  found  it  so  quickly  my  son?" 


66  LEADING    CASES    IN    THE    BIBLE. 

And  he  said,  "Because  the  Lord  thy  God  brought 
it  to  me." 

And  Isaac  said  unto  Jacob,  "Come  here,  I  pray 
thee,  that  I  may  feel  thee  my  son,  whether  thou  be 
truly  my  son  Esau  or  not." 

And  Jacob  went  near  unto  Isaac  his  father  and  he 
felt  him  and  he  said,  "The  voice  is  the  voice  of 
Jacob,  but  the  hands  are  the  hands  of  Esau"  and  he 
recognized  him  not,  because  his  hands  were  hairy  as 
his  brother  Esau's  hands,  so  he  blessed  him  and  he 
said,  "Art  thou  indeed  my  son  Esau?" 

He  said,  "I  am." 

And  he  said,  "Bring  it  near  to  me  and  I  will  eat 
of  my  son's  venison  that  my  soul  may  bless  thee," 
and  he  brought  it  near  to  him  and  he  did  eat  and 
he  brought  him  wine  and  he  drank,  and  Isaac  his 
father  said  unto  him  "Come  near,  I  pray  thee,  and 
kiss  me  my  son,"  and  he  came  near  and  kissed  him, 
and  he  smelled  the  smell  of  his  garments  and  blessed 
him  and  said,  "See,  the  smell  of  my  son  is  as  the 
smell  of  a  field  which  the  Lord  hath  blessed." 

Three  times  did  Isaac  indicate  his  suspicion  that 


THE    MATTER    OF    ISAAC'S    WILL.  67 

there  was  something  wrong  and  that  he  was  being 
imposed  upon.  First,  in  his  surprise  that  Esau  had 
returned  so  quickly  from  the  chase ;  then  in  his  wish 
to  feel  him,  and  even  after  he  had  noticed  that  his 
hands  were  hairy  like  Esau's  hands,  he  asked  again, 
"Art  thou  indeed  my  son  Esau?"  It  is  quite  clear 
that  Jacob  obtained  the  blessing  by  gross  fraud  in 
impersonating  his  elder  brother  Esau.  It  was  clearly 
the  intention  of  Isaac  to  give  the  blessing  to  Esau, 
and  if  he  had  discovered  the  imposition  in  time  there  < 
can  be  no  doubt  that  Jacob's  fear,  expressed  to  his 
mother  when  she  suggested  the  deception,  "I  would 
bring  upon  me  a  curse  and  not  a  blessing,"  would 
have  been  realized. 

Isaac  was  now  satisfied  and  blessed  Jacob,  saying, 
"And  may  God  give  thee  of  the  dew  of  heaven  and 
the  fatness  of  the  earth  and  plenty  of  corn  and  wine. 
Nations  shall  serve  thee  and  people  bow  down  to  thee. 
Be  lord  over  thy  brethren  and  thy  mother's  sons 
shall  bow  down  to  thee.  Cursed  be  they  that  curse 
thee  and  blessed  be  they  that  bless  thee." 

God's  blessing  could  be  disposed  of  by  the  head  of 


68  LEADING    CASES    IN    THE    BIBLE. 

the  family,  who  was  also  the  family  priest  and  in 
possession  of  those  mysteries  by  which  the  gods  could 
be  induced  to  act  in  certain  ways.  The  priest  was 
at  all  times  supposed  to  be  able  to  control  God's 
blessing,  and  among  the  modern  survivals  of  this 
belief  is  that  which  exists  in  the  Catholic  church  to 
the  effect  that  the  church  officially  controls  the  doors 
of  heaven  and  hell  and  that  its  blessing  and  its  curse 
are  entirely  effective. 

The  first  part  of  Isaac's  blessing  was  a  prayer  to 
God  to  give  Jacob  a  plentiful  harvest  of  the  fields. 
Following  this  donation  of  material  wealth  Isaac  con- 
veys to  him  leadership  over  other  tribes  and  lordship 
within  his  own  tribe  and  family.  The  latter  was 
Isaac's  personal  gift.  All  of  the  property  rights  of 
the  family  were  centered  in  its  head,  and  by  convey- 
ing the  headship  of  the  family,  Isaac  conveyed  all  of 
his  property  rights  to  Jacob. 

Hardly  had  Jacob  departed,  when  Esau  came  in 
and  invited  his  father  to  partake  of  the  venison  that 
he  had  brought  him,  and  Isaac  said  unto  him, 

"Who  art  thou?" 


THE    MATTER    OF    ISAAC'S    WILL.  59 

And  he  said,  * '  I  am  thy  son ;  thy  first-born,  Esau. ' ' 

"And  Isaac  trembled  greatly,  exceedingly,  and 
said,  ''Who  was  it?  where  is  he  that  hath  hunted 
venison  and  brought  it  to  me  and  I  ate  of  all  before 
thou  camest  and  blessed  him?  Yea,  he  will  remain 
blessed. ' ' 

When  Esau  heard  the  words  of  his  father  he  ut- 
tered a  great  and  exceedingly  bitter  cry,  and  said 
unto  his  father,  "Bless  me,  also  me,  my  father." 

And  he  said,  "Thy  brother  came  with  subtlety  and 
took  away  thy  blessing." 

And  he  said,  "Hath  he  been  therefore  named 
Jacob,  because  he  hath  supplanted  me  these  two 
times?  My  birthright  he  took  away,  and  behold, 
now  he  hath  taken  away  my  blessing,"  and  he  said, 
"Hast  thou  not  reserved  a  blessing  for  me?" 

And  Isaac  answered  and  said  unto  Esau,  "Behold, 
I  have  made  him  thy  lord,  and  all  his  brethren  have 
I  given  to  him  for  servants;  and  with  corn  and  wine 
have  I  endowed  him,  and  what  can  I  do  now  for  thee, 
my  son?" 

And  Esau  said  unto  his  father,  "Hast  thou  then 


70  LEADING    CASES    IN    THE    BIBLE. 

but  one  blessing,  my  father?  Bless  me,  also  me,  my 
father."     And  Esau  lifted  up  his  voice  and  wept. 

And  Isaac  his  father  answered  and  said  unto  him, 
''Behold  thy  dwelling  shall  be  of  the  fatness  of  the 
earth  and  of  the  dew  of  heaven  from  above;  and  by 
thy  sword  shalt  thou  live  and  thy  brother  shalt  thou 
serve ;  and  it  shall  come  to  pass  that  when  thou  shalt 
have  the  dominion,  thou  canst  break  his  yoke  from 
off  thy  neck." 

This  remarkable  dialogue  between  Isaac  and  Esau 
indicates  how  completely  in  primitive  times  the  mere 
formal  act  was  believed  to  have  potency,  irrespective 
of  the  intention  with  which  it  was  done.  In  modern 
times  intention  is  essential  to  confer  validity  upon  an 
act,  but  in  patriarchal  times  the  intention  was  not 
at  all  essential.  The  formal  act,  whether  it  had  been 
induced  by  fair  means  or  by  fraud,  was  binding  and 
irrevocable!  The  notion  that  a  formal  act  may  be 
nullified  on  grounds  of  fraud  or  mistake  is  com- 
paratively late  in  the  history  of  jurisprudence. 

It  is  generally  supposed  that  after  Isaac  had  said, 
"Where  is  he  that  hath  hunted  venison  and  brought 


THE    MATTER    OF    ISAAC'S    WILL.  71 

it  to  me  and  I  ate  of  all  before  thou  earnest  and 
blessed  him,"  he  suddenly  realized  that  it  was  his 
younger  son  Jacob  who  had  thus  obtained  the  bless- 
ing, and  that,  being  overcome  by  a  burst  of  affection 
for  him,  he  added  the  words:  *'Yea,  he  will  be 
blessed,"  as  though  they  were  a  confirmation  of  the 
blessing  theretofore  obtained  by  fraud.  But  it  can- 
not be  presumed  that  this  is  the  true  meaning,  for 
Isaac  undoubtedly  intended  to  bless  Esau,  and  his 
entire  interview  with  Esau  indicates  that  he  was 
grieved  at  the  fraud  practiced  upon  him  and  at  his 
inability  to  do  anything  to  correct  it.  Note  the  help- 
lessness of  his  statement  to  Esau,  "And  what  can  I 
now  do  for  thee  my  son  ? ' '  This  phrase  simply  indi- 
cates that  Isaac  felt  that  the  blessing  conferred  upon 
Jacob  was  irrevocable. 

The  blessing  given  by  Isaac  to  his  son  Esau  was 
more  nearly  a  curse  than  a  blessing.  There  was  in 
fact  only  one  blessing,  as  Esau's  pitiful  question  pre- 
supposed, and  that  one  blessing  had  been  fully  given 
to  Jacob.  The  concluding  words  to  Esau,  "And  it 
shall  come  to  pass  that  when  thou  shalt  have  the 


72  LEADING    CASES    IN    THE    BIBLE. 

dominion  thou  canst  break  his  yoke  from  off  thy 
neck,"  is  an  allusion  to  the  Edomites  and  the  Israel- 
ites, whose  political  relations  are  thus  supposed  to 
have  been  outlined  by  their  ancestor. 

It  seems,  from  this  case,  that  the  patriarch  had 
the  right  to  dispose  of  the  family  estate  to  a  member 
of  the  family  other  than  the  oldest  son.  In  the  bless- 
ing of  Ephraim  and  Manasseh  (Gen.  XLVIII,  20) 
Jacob  preferred  the  younger  to  the  older  son  of 
Joseph,  and  in  blessing  Joseph  he  gave  him  a  portion 
above  his  brothers  (Gen.  XLVIII,  22),  and  the  law 
in  the  Deuteronomic  Code  (Deut.  XXI,  15-17)  indi- 
cates generally  that,  until  the  right  of  the  first-born 
was  firmly  established  by  statute,  the  patriarch  had 
the  power  to  prefer  any  of  his  children  above  the 
first-born. 

The  blessing,  so-called,  was  something  more  than 
is  connoted  by  the  modern  use  of  the  word.  It  was 
a  quasi-testamentary  gift,  and  like  testamentary  gifts 
at  Roman  Law,  it  was  public  and  irrevocable.  The 
right  of  testamentary  disposition  of  property  as 
known   in   modern   days    was   unknown    among   the 


THE    [MATTER    OF    ISAAC'S    WILL.  73 

ancient  Hebrews.  The  family  was  believed  to  be 
immortal,  and  family  property,  therefore,  survived 
the  death  of  the  present  holder  and  went  to  the  law- 
ful heir.  Hence  the  patriarch  had  no  right  to  give 
the  family  estate  to  strangers,  although,  as  is  said 
above,  it  seems  to  have  been  within  his  power  at  one 
time  to  divide  it  among  his  own  children,  preferring 
the  younger  sons  to  the  first-born. 

An  interesting  question  might  have  arisen  if  Esau 
had  obtained  the  blessing,  and  his  right  to  the  head- 
ship of  the  family  had  subsequently  been  contested 
by  Jacob  on  account  of  his  purchase  of  Esau's  birth- 
right, which  was  virtually  an  assignment  of  subse- 
quently acquired  property.  Whether  Esau  would 
have  been  willing  to  recognize  his  sale  to  Jacob  after 
he  had  obtained  the  blessing  from  Isaac  is  highly 
problematical,  for  though  he  had  bound  himself  by 
a  solemn  oath  to  Jacob  he  had  subsequently  received 
the  blessing  from  Isaac  by  an  equally  solemn  act 
which  could  well  have  been  interpreted  to  nullify  the 
effect  of  the  earlier  oath,  for,  after  all,  the  patriarch 
and  head  of  the  family  was  the  one  whose  solemn  and 


74  LEADING    CASES    IN    THE    BIBLE. 

formal  act  finally  determined  all  questions  of  right 
and  property  in  his  family. 

In  Chapter  XXVIII  an  entirely  different  account 
is  given  of  the  blessing  of  Jacob.  There  Isaac  called 
Jacob  and  blessed  him  of  his  own  accord.  This  ac- 
count seems  to  be  based  upon  an  entirely  different 
tradition  from  the  former  one.  In  the  account  in 
Chapter  XXVII  Jacob  obtains  the  blessing  by  fraud 
with  the  connivance  of  his  mother,  Rebecca.  Isaac 
is  under  the  impression  that  he  has  blessed  Esau, 
and  when  Esau  discovers  the  fraud  he  vows  vengeance 
and  determines  to  kill  his  brother  Jacob.  Rebecca, 
therefore,  sends  Jacob  away  until  Esau's  wrath  shall 
have  been  appeased.  In  the  account  in  Chapter 
XXVIII  Isaac  voluntarily  blesses  Jacob  and  sends 
him  away  for  the  purpose  of  having  him  marry  one 
of  the  daughters  of  the  house  of  Laban,  and  nothing 
at  all  is  said  about  Esau's  hatred  of  Jacob  because 
the  blessing  had  been  bestowed  upon  him. 


THE  COVENANT  OF  JACOB  AND  LABAN. 

Genesis  XXXI. 

Toward  the  end  of  Jacob's  stay  with  Laban,  after 
he  had  married  and  had  acquired  a  great  deal  of 
property  in  cattle  and  slaves,  Laban 's  sons,  jealous 
of  his  increasing  wealth,  charged  him  with  having 
gotten  it  out  of  that  which  was  their  father's.  This 
charge  evidently  made  an  impression  on  Laban,  for 
''Jacob  beheld  the  countenance  of  Laban,  and  behold, 
it  was  not  toward  him  as  before."  Whereupon 
Jacob  concluded  that  it  was  time  for  him  to  leave 
Laban  and  go  back  to  his  home.  He  told  his  wives, 
Rachel  and  Leah,  of  his  determination,  assigning  as 
a  reason  Laban 's  ill-will  and  mistrust.  They  an- 
swered him  saying,  *'Is  there  yet  any  portion  or 
inheritance  for  us  in  our  father 's  house ;  were  we  not 
counted  of  him  as  strangers?  for  he  hath  sold  us, 
and  he  hath  quite  consumed  also  our  money.  For 
all  the  riches  which  God  hath  taken  from  our  father, 
that  is  ours  and  our  children 's ;  now  then,  whatsoever 

76 


76  LEADING    CASES    IN    THE    BIBLE. 

God  hath  said  unto  thee,  do."  This  answer  of 
Jacob 's  wives  sets  forth  clearly  the  position  of  women 
at  that  time. 

The  biblical  account,  as  it  has  come  down  to  us, 
was  evidently  written  at  a  time  when  patriarchal  law 
and  custom  prevailed.  But  there  is  evidence  in  this 
record  of  the  story  of  Jacob  and  Laban  that  a  matri- 
archal system  either  had  preceded  the  other  or  was 
in  some  parts  of  Syria  existing  contemporaneously 
with  it,  and  thus  exerting  some  influence  in  modify- 
ing its  provisions.  From  their  answer  to  Jacob  it 
would  appear  that  Rachel  and  Leah  were  living  in 
the  patriarchal  household,  for  their  father  had  exer- 
cised the  absolute  right  of  disposing  of  them  as 
though  they  had  been  slaves.  They  charged  him  with 
having  sold  them  and  instead  of  endowing  them  with 
the  money  received  from  their  suitor,  of  greedily 
consuming  it  himself.  When  they  ceased  to  be  mem- 
bers of  their  father's  household  they  came  into  the 
manus  of  their  husband.  Hence  their  statement  that 
there  was  no  longer  any  portion  or  inheritance  for 
them  in  their  father's  house. 


COVENANT    OF    JACOB    AND    LABAN.  77 

In  the  patriarchal  society  property  descended  to 
male  heirs  only,  and  it  was  not  until  after  the  de- 
cision in  the  case  of  Zelophehad's  daughters  that 
daughters  had  the  right  of  inheritance  before  collat- 
eral kinsmen.  Yet  in  this  ease  the  statement  of  Leah 
and  Rachel  assumes  that  if  they  had  remained  mem- 
bers of  their  father's  family  they  would  have  had  a 
share  in  his  estate.  This  is  one  of  the  indicia  of  the 
influence  of  a  system  differing  from  the  patriarchal 
in  which  kinship  was  reckoned  through  the  females 
and  property  rights  descended  through  them. 

Jacob,  having  obtained  the  consent  of  his  wives, 
took  advantage  of  Laban's  absence  from  home  and 
secretly  departed.  Rachel  stole  her  father's  house- 
hold gods,  evidently  for  the  purpose  of  carrying  the 
household  luck  with  her.  According  to  the  primitive 
conception  of  the  Deity  then  current,  the  Lares  and 
Penates  formed  as  important  a  part  of  the  household 
furniture  as  in  much  later  days  in  Greece  and  Rome. 
When  Laban  heard  of  the  flight  of  Jacob  and  his 
family,  he  pursued  them  and  overtook  them  after  a 
seven   days'   journey.     There   was  a   great   deal   of 


78  LEADING    CASES    IN    THE    BIBLE. 

bluster  about  Laban  at  their,  meeting  and  tbe  reasons 
assigned  by  him  for  his  pursuit  were  first,  that  Jacob 
had  led  away  his  daughters  "as  captives  taken  with 
the  sword ' ' ;  second,  that  he  had  stolen  away  secretly 
so  that  Laban  had  been  deprived  of  the  privilege  of 
sending  him  away  with  the  customary  song  and 
music,  with  which  oriental  courtesy  sped  the  parting 
guest,  and  third,  that  he  had  stolen  his  gods.  Laban 's 
first  reason  implied  that  Jacob  had  no  right  to  carry 
off  his  daughters  even  though  they  were  now  Jacob's 
wives.  And  there  is  in  this  a  suggestion  that,  not- 
withstanding the  belief  of  the  women  that  there  was 
no  longer  any  portion  or  inheritance  for  them  in  the 
house  of  their  father,  their  father  still  had  certain 
authority  over  them  and  perhaps  also  over  their  hus- 
band. In  other  words,  the  implication  is  that  Jacob 
by  marrying  Laban 's  daughters  had  really  entered 
into  Laban 's  family,  and  that  Laban  as  chief  of  that 
clan  had  the  patriarchal  authority  over  him  as  well 
as  his  wives.  It  will  be  seen,  therefore,  that  the 
legal  status  of  Laban 's  daughters  after  their  mar- 
riage is  not  clearly  defined  in  this  record.     This  may 


COVENANT    OF    JACOB    AND    LABAN.  79 

be  explained,  as  above  slated,  by  the  fact  that  the 
custom  of  this  family  was  not  purely  patriarchal,  but 
modified  to  some  extent  by  matriarchal  institutions. 
There  is  another  explanation  for  this  and  other  diffi- 
culties in  this  record.  It  is  the  opinion  of  some 
biblical  scholars  that  the  thirty-first  chapter  of  Gen- 
esis is  a  fusion  of  two  separate  traditions  of  the  same 
story. 

In  answer  to  Laban's  first  reason  Jacob  said  that 
he  fled  secretly  because  he  was  afraid  that  Laban 
would  exercise  the  patria  potestas  and  take  his 
daughters  from  him  by  force.  The  second  reason  he 
ignored  as  unworthy  of  a  reply,  probably  because  he 
had  no  doubt  of  Laban's  insincerity.  To  his  third 
reason  he  answered,  "With  whomsoever  thou  findest 
thy  gods  let  him  not  live:  before  our  brethren  seek 
out  thou  what  is  thine  with  me  and  take  it  to  thee." 
And  then  the  record  adds,  parenthetically,  "but 
Jacob  knew  not  that  Rachel  had  stolen  them." 

As  to  the  right  of  the  father  to  take  his  daughters 
from  their  husband,  illustrations  may  be  found  in 
other   portions   of  the   Bible.     King   Saul   took  his 


80  LEADING    CASES    IN    THE    BIBLE. 

daughter  Michal  away  from  her  husband  David  and 
gave  her  to  another,  and  in  the  same  manner  Sam- 
son's father-in-law  took  his  wife  away  from  him.  It 
is  quite  unlikely  that,  unless  Laban  had  the  right  by 
virtue  of  prevailing  custom  to  take  his  daughters 
from  their  husband,  Jacob  would  have  feared  the  ex- 
ercise of  such  extraordinary  power  There  is  nothing 
in  the  record  to  show  that  Laban  was  so  absolutely 
conscienceless  as  to  have  been  capable  of  compelling 
his  daughters  to  leave  their  husband,  especially  after 
he  had  given  them  as  wives  to  Jacob  in  return  for 
fourteen  years  of  service  rendered  to  him  by  Jacob 
in  caring  for  his  flocks  and  herds.  The  real  subject 
of  controversy  between  Jacob  and  Laban  came  down 
to  the  question  of  the  theft  of  Laban 's  household 
gods  and  upon  this  point  the  record  contains  much 
interesting  information  upon  the  law  then  prevailing 
concerning  theft.  "And  Laban  went  into  the  tent 
of  Jacob,  and  into  the  tent  of  Leah,  and  into  the  tent 
of  the  two  maidservants  but  he  found  nothing.  He 
then  went  out  of  the  tent  of  Leah  and  entered  into 
Rachel's  tent."     Rachel,  who  had  hidden  the  images 


COVENANT    OF    JACOB    AND    LABAN.  §1 

under  the  saddle  of  her  camel,  prevented  his  search- 
ing there  for  them  by  an  ingenious  subterfuge,  "And 
thus  he  searched  but  found  not  the  images."  It  ap- 
pears, therefore  that,  according  to  ancient  custom,  he 
who  alleged  theft  had  to  prove  it  by  finding  the  stolen 
articles  in  the  possession  of  the  thief  and  producing 
them  before  witnesses,  who  in  this  case  were  their 
"brethren."  These  "brethren"  were  probably  the 
older  members  of  the  family  or  clan  who  constituted 
the  family  court  for  the  settlement  of  all  disputes 
arising  within  it.  It  also  appears  that  the  prosecutor 
had  the  right  of  search  and  had  to  be  allowed  free 
access  to  the  dwelling  of  the  suspected  person  in  his 
effort  to  find  the  stolen  goods.  All  this  appears,  fur- 
thermore, in  Jacob's  angry  outburst  after  Laban's 
search,  "What  is  my  trespass?  What  is  my  sin  that 
thou  hast  so  hotly  pursued  after  me  ?  Although  thou 
hast  searched  all  my  goods  what  hast  thou  found  of 
all  the  articles  of  thy  household?  Set  it  here  before 
my  brethren  and  thy  brethren  that  they  may  judge 
between  us  both."  Jacob's  indignation  at  the  exer- 
cise of  the  right  of  search  carried  him  further.     This 


82  LEADING    CASES    IN    THE    BIBLE. 

was  not  the  only  grievance  he  had  against  Laban,  it 
was  but  the  last  of  a  series  of  oppressive  acts  which 
he  had  suffered  at  the  hands  of  his  father-in-law. 
During  the  twenty  years  in  which  Jacob  had  been 
caretaker  of  Laban 's  flocks  and  herds  Laban  had  fre- 
quently violated  the  law  of  master  and  servant  and 
particularly  the  law  as  it  applied  to  the  herdsmen 
and  shepherds. 

Even  in  the  most  autocratic  and  tyrannical  govern- 
ments a  system  of  private  law  arises  based  upon  cus- 
toms which  are  gradually  established  and  universally 
observed,  and  although  such  laws  and  customs  may 
be  broken  by  the  strong  hand  of  a  master,  the  natural 
sense  of  right  of  the  community  is  offended  and  will 
not  condone  the  fault.  In  the  following  sentences 
we  may  find  the  record  of  a  number  of  such  legal 
customs;  Jacob  said  to  Laban,  "These  twenty  years 
have  I  been  with  thee;  thy  ewes  and  thy  she-goats 
have  not  cast  their  young,  and  the  rams  of  thy  flock 
have  I  not  eaten.  That  which  was  torn  of  beasts  I 
brought  not  unto  thee ;  of  my  hand  didst  thou  require 
it,  whatever  was  stolen  by  day  or  stolen  by  night. 


COVENANT    OF    JACOB    AND    LABAN.  83 

Where  I  was  in  the  day  the  heat  consumed  me,  and 
the  frost  by  night ;  and  my  sleep  departed  from  mine 
eyes.  These  twenty  years  have  I  been  in  thy  house ; 
I  have  served  thee  fourteen  years  for  thy  two  daugh- 
ters, and  six  years  for  thy  flocks;  and  thou  hast 
changed  my  wages  ten  times.  Except  the  God  of  my 
father,  the  God  of  Abraham,  and  the  Fear  of  Isaac, 
had  been  with  me,  surely  thou  hadst  now  sent  me 
away  empty. ' '  This  was  the  law  of  the  shepherd,  he 
was  responsible  for  the  care  of  the  ewes  and  the  she- 
goats  that  they  might  not  cast  their  young  prema- 
turely. He  was  forbidden  to  kill  the  rams  of  the 
flock  for  food;  he  was  responsible  for  the  loss  of  any 
of  the  cattle  under  his  charge  which  were  killed  by 
wild  beasts  or  stolen  either  by  day  or  by  night;  he 
was  compelled,  therefore,  to  be  as  vigilant  during  the 
night  as  during  the  day,  because  the  loss  had  to  be 
born  by  him.  Hence  Jacob  said,  "my  sleep  departed 
from  mine  eyes."  The  wages  for  the  shepherd's 
service  were  fixed  by  agreement  and  could  not  be  law- 
fully changed  by  the  master  except  with  the  servant's 
consent,  but  Laban  changed  Jacob's  wages  ten  times. 


84  LEADING    CASES    IN   THE    BIBLE. 

The  property  acquired  by  the  servant  while  in  the 
employ  of  the  master  could  not  be  lawfully  taken 
from  him,  and  it  appears  that  Laban  would  have 
broken  this  law,  as  he  had  broken  the  others,  had  it 
not  been  for  the  fear  of  Jacob's  God. 

The  ancient  code  of  law,  the  so-called  ' '  Book  of  the 
Covenant,"  which  is  found  in  the  twenty-first  to 
twenty-third  chapters  of  Exodus,  contains  provisions 
which  are  of  interest  in  this  connection.  If  the  ser- 
vant was  given  a  wife  by  the  master  and  she  bore 
him  children,  the  woman  and  her  children  remained 
with  the  master  at  the  expiration  of  the  period  of 
service  and  the  servant  went  out  alone  (Exodus  XXI, 
2-A).  This  may  account  for  the  fear  expressed  by 
Jacob  that  "  Peradventure  thou  wouldest  take  by 
force  thy  daughters  from  me."  "If  a  man  deliver 
unto  his  neighbor  an  ass,  or  an  ox,  or  a  lamb  or  any 
beast  to  keep  and  it  die  or  be  hurt,  or  driven  away, 
no  man  seeing  it;  then  shall  an  oath  of  the  Lord  be 
between  them  both,  that  he  hath  not  stretched  out  his 
hand  against  his  neighbor's  goods;  and  the  owner  of 
it  shall  accept  this  and  he  shall  not  make  it  good." 


COVENANT    OF    JACOB    AND    LABAN.  85 

Laban  did  not  permit  Jacob  to  offer  any  proof  to 
show  that  he  was  guilty  of  no  negligence.  "If  it  be 
stolen  from  him  he  shall  make  restitution  unto  the 
owner  thereof.  If  it  be  torn  in  pieces  then  let  him 
bring  it  as  evidence;  that  which  was  torn  he  shall 
not  make  good"  (Exodus  XXII,  9-12).  Laban 
claimed  damages  from  Jacob  even  for  that  which  was 
torn  by  wild  beasts  at  night. 

The  charge  that  Laban  had  changed  his  wages  ten 
times  is  made  not  merely  because  of  the  general  cus- 
tom which  required  mutual  consent  to  the  change, 
but  upon  the  express  contract  of  Laban,  When 
Jacob  first  entered  his  service  Laban  said  to  him 
(Genesis  XXX,  28),  "Appoint  me  thy  wages  and  I 
will  give  them,"  and  after  Jacob  had  set  forth  his 
terms  Laban  said  (verse  34),  "Let  it  be  according 
to  thy  word." 

To  all  of  Jacob's  indignant  charges  Laban  made 
no  reply,  but  relying  on  some  peculiar  customary 
right  he  doggedly  answered,  "The  daughters  are  my 
daughters,  and  the  children  are  my  children,  and  the 
flocks  are  my  flocks,  and  all  that  thou  seest  is  mine." 


86  LEADING    CASES    IN    THE    BIBLE. 

To  this  claim,  backed  by  a  sufficient  force  of  men  to 
make  it  effective,  there  could  be  no  reply.  Having 
thus  asserted  his  right  and  power,  Laban  was  over- 
come by  another  mood;  either  fear  of  the  wrath  of 
Jacob's  God  or  simple  paternal  affection  for  his 
daughters  and  grandchildren  suddenly  overcame  him 
and  he  added,  "But  as  to  my  daughters,  what  can  I 
do  unto  them  this  day  or  unto  their  children  whom 
they  have  born?"  He  felt  that  to  have  exercised 
his  alleged  right  would  have  wrecked  their  happi- 
ness; he  thereupon  promptly  determined  not  to 
press  his  rights  further,  but  to  part  in  peace  with 
Jacob,  and  he  invited  him  to  enter  into  a  covenant, 
''and  let  it  be  for  a  witness  between  me  and  thee." 
Thus  all  their  disputes  were  to  be  settled  and  ended 
and  a  solemn  covenant  of  brotherhood  was  to  bind 
them  to  remain  at  peace  with  each  other  in  per- 
petuity. 

The  record  proceeds  to  give  the  details  of  the 
formalities  constituting  this  covenant.  This  record 
(verses  45-54)  is  evidently  made  up  of  two  dif- 
ferent accounts  of  the  transaction.     According  to  the 


COVENANT    OF    JACOB    AND    LABAN.  §7 

first  account  "Jacob  took  up  a  stone  and  set  it  up  for 
a  pillar,"  and  he  called  it  Mizpah  (Hebrew:  "watch 
tower"),  for  he  (Laban)  said,  "The  Lord  shall  watch 
between  me  and  thee  when  we  are  absent  one  from 
the  other;  if  thou  shalt  afflict  my  daughters,  or  if 
thou  shalt  take  other  wives  besides  my  daughters, 
when  there  is  no  man  with  us:  see,  God  is  witness 
between  me  and  thee.  .  .  .  Jacob  swore  by  the  Fear 
of  his  father  Isaac.  Then  Jacob  slew  some  cattle 
upon  the  mountain  and  called  his  brethren  to  eat 
bread  and  they  did  eat  bread  and  abided  all  night 
upon  the  mountain."  The  mountain  referred  to  is 
Mount  Gilead,  where  Jacob  had  pitched  his  tent  when 
Laban  overtook  him.  "And  early  in  the  morning 
Laban  rose  up  and  kissed  his  sons  and  his  daughters 
and  blessed  them:  and  Laban  returned  unto  his  own 
place." 

According  to  this  version  of  the  covenant  (which 
is  found  by  reading  together  verses  45,  49,  50  and 
the  end  of  53  and  54  of  this  chapter)  it  was  one  of 
private  law.  Laban  concluded  not  to  exercise  the 
patria  potestas,  but  determined  to  leave  his  daughters 


88  LEADING    CASES    IN    THE    BIBLE. 

with  Jacob,  and  in  order  to  guarantee  that  they  would 
receive  fair  treatment  from  their  husband  and  that 
he  would  take  no  other  wives  beside  them,  he  com- 
pelled Jacob  to  enter  into  this  covenant  with  him. 
The  principal  incidents  of  entering  into  a  covenant 
were  first,  the  erection  of  some  monument  as  a  visible 
symbol ;  second,  a  solemn  adjuration  setting  forth  the 
terms  of  the  agreement  for  which  the  sanction  of  the 
covenant  was  invoked;  third,  calling  upon  God  to 
witness  the  compact;  fourth,  taking  the  oath  to  ob- 
serve the  compact,  and  fifth,  offering  up  a  sacrifice 
to  the  Deity  and  breaking  bread  together  at  the  place 
of  sacrifice. 

In  the  other  version  (verses  46,  47,  48,  51,  52  and 
the  first  part  of  53)  the  covenant  was  one  of  public 
law.  "And  Jacob  (Laban?)  said  unto  his  brethren. 
Gather  stones ;  and  they  took  stones  and  made  a  heap ; 
and  they  ate  there  upon  the  heap.  And  Laban  called 
it  Yegarsahadutha :  (Chaldaic:  ''the  heap  of  wit- 
ness") but  Jacob  called  it  Gal-ed  (Hebrew:  "the 
heap  of  witness").  And  Laban  said  This  heap  is  a 
witness   between   me    and    thee    this   day.  .  .  .  And 


COVENANT    OF    JACOB    AND    LABAN.  89 

Laban  said  to  Jacob,  Behold  this  heap  which  I  have 
cast  up  between  me  and  thee;  witness  be  this  heap 
that  I  will  not  pass  by  this  heap  and  that  thou  shall 
not  pass  unto  me  by  this  heap  for  evil.  The  God  of 
Abraham,  and  the  God  of  Nahor  (the  God  of  their 
father)  shall  judge  between  us." 

In  this  version  of  the  covenant  there  is  no  mention 
of  any  private  contract  between  the  parties  in  refer- 
ence to  Jacob's  treatment  of  Laban 's  daughters.  It 
was  a  covenant  entered  into  between  two  tribal  chief- 
tains dealing  with  each  other  as  sovereign  men,  and 
is  equivalent  to  a  modern  treaty  of  peace.  In  the 
patriarchal  nomadic  society  there  was  no  public  law 
in  the  modern  sense.  Each  family  was  an  indepen- 
dent, autonomous  state  and  the  heads  of  the  families 
dealt  with  each  other  as  sovereigns,  who  settled  their 
disputes  either  by  an  appeal  to  the  sword,  or  by  a 
covenant  or  treaty  of  peace.  When  it  is  remembered 
that  in  the  land  of  Canaan,  a  territory  not  as  large 
as  the  State  of  New  Jersey,  Joshua  found  and  over- 
came thirty-one  independent  sovereigns  it  becomes 
apparent  that  kingship  in  those  days  simply  meant 
the  headship  of  a  tribe  or  clan. 


90  LEADING    CASES    IN    THE    BIBLE. 

In  the  first  version  of  the  covenant  a  single  stone 
was  set  up  as  a  pillar;  in  this  version  stones  were 
gathered  and  a  heap  was  made  and  the  sacrificial 
meal  was  eaten  upon  this  heap.  The  making  of  this 
little  hillock  of  stones  has  this  further  significance: 
According  to  primitive  Hebrew  notions  the  Deity  was 
sought  for  and  found  on  the  high  places,  and  the  map 
of  Palestine  is,  even  to  this  day,  dotted  with  names 
indicating  that  at  some  time  these  localities  were 
sacred  high  places.  Every  mountain  and  hilltop  had 
its  local  divinity,  its  shrine  and  sanctuary.  When, 
therefore,  Laban  and  Jacob  entered  into  their  treaty 
of  peace  they  built  up  a  miniature  high  place  as  a 
sacred  symbol,  and  they  made  their  sacrifice  and 
sealed  their  covenant  and  ate  their  sacred  meal  upon 
this  little  "high  place,"  thus  invoking  the  presence 
of  the  Deity  in  a  place  similar  to  that  upon  which 
the  Deity  was  supposed  to  dwell. 

Covenants  such  as  this  were  absolutely  inviolable, 
and,  with  this  knowledge  of  the  meaning  of  the  cere- 
mony of  the  covenant,  we  can  understand  the  horror 
of  the  phrase  so  often  used  by  the  prophets  in  Israel, 
''Ye  have  broken  the  covenant  of  your  fathers." 


THE  BLASPHEMY  OF  THE  SON  OF 
SHELOMITH. 

Leviticus  XXIV,  10-23. 

Among  very  primitive  peoples,  blasphemy  as  a 
crime  is  unknown.  The  gods  are  superhuman  powers 
Avith  superhuman  attributes,  who,  however,  conduct 
their  affairs  very  much  like  human  beings.  In  such 
a  state  of  society  any  one,  therefore,  who  offends  the 
gods  either  by  improper  words,  by  robbing  them  of 
their  sacrifices,  or  by  desecrating  their  sanctuaries, 
is  left  to  deal  with  them  exclusively,  and  public  law, 
so  far  as  it  exists,  takes  no  cognizance  of  the  crime. 
The  gods  are,  so  to  speak,  allowed  to  attend  to  their 
own  affairs  without  interference  from  their  human 
worshipers.  If  their  sanctuaries  are  insulted,  they 
are  expected  to  smite  the  offender  with  their  light- 
nings or  with  disease,  or  in  some  other  way  manifest 
their  displeasure  and  resentment.  But  when  a  people 
has  reached  a  national  estate  and  has  a  national  god, 
any   offense   against   the   deity   becomes   a   national 

91 


92  LEADING    CASES    IN    THE    BIBLE. 

crime,  equivalent  in  some  respects  to  high  treason. 
When  the  national  god  is  insulted,  it  is  the  national 
pride  that  is  wounded,  and,  when  the  sanctuaries  are 
robbed  or  desecrated,  it  is  the  national  property  that 
is  stolen. 

The  transition  from  the  primitive  condition  to  the 
later  stage  in  which  the  people  take  up  the  cause  of 
their  god  is  found  in  an  interesting  story  in  the  sixth 
chapter  of  Judges,  where  Gideon  threw  down  the 
altar  of  Baal  and  cut  down  the  grove  that  stood  by 
it.  "And  when  the  people  of  the  city  beheld  what 
he  had  done  and  discovered  who  was  the  offender, 
they  went  to  his  father  and  said :  Bring  out  thy  son 
that  he  may  die,  because  he  hath  cast  down  the  altar 
of  Baal  and  because  he  hath  cut  down  the  grove  that 
was  by  it."  And  Joash,  who  was  Gideon's  father, 
said  to  them,  "Will  ye  plead  for  Baal?  If  he  be  a 
god  let  him  plead  for.  himself  because  some  one  has 
cast  down  his  altar."  Although  Baal  was  a  deity 
worshiped  by  all  the  men  of  the  city,  yet  the  par- 
ticular altar  destroyed  belonged  to  Joash,  and  inas- 
much as  Joash  did  not  care  to  take  vengeance  for  the 


BLASPHEMY  OF  SON  OF  SHELOMITH.     93 

destruction  of  the  altar,  the  men  of  the  city  allowed 
themselves  to  be  persuaded  not  to  do  so,  by  the  plea 
that  if  the  offended  deity  did  not  avenge  the  wrong 
done  to  him,  they  need  not  be  zealous  for  him. 

The  beginning  of  national  self-consciousness  among 
the  Hebrews  is  shown  in  the  case  of  the  blasphemer, 
which  is  recorded  in  the  twenty-fourth  chapter  of 
Leviticus.  While  the  Israelites  were  in  the  wilder- 
ness after  the  exodus  from  Egypt,  there  went  forth 
one  of  that  "mixed  multitude,"  the  son  of  an  Israel- 
itish  woman  whose  father  was  an  Egyptian,  and  he 
and  a  man  of  Israel  strove  together  in  the  camp, 
"and  the  son  of  the  Israelitish  woman  pronounced 
the  Name  and  blasphemed,  and  they  brought  him 
unto  Moses.  (And  his  mother's  name  was  Shelo- 
mith,  the  daughter  of  Dibri,  of  the  tribe  of  Dan.) 
And  they  put  him  in  ward  to  ascertain  the  law  ac- 
cording to  the  mouth  of  the  Lord ;  and  the  Lord  said 
unto  MosCs:  Bring  forth  the  blasphemer  without  the 
camp,  and  let  all  who  heard  him  lay  their  hands  upon 
his  head,  and  let  all  the  assembly  stone  him.  .  .  . 
And  Moses  spoke  to  the  children  of  Israel,  and  they 


94  LEADING    CASES    IN    THE    BIBLE. 

brought  forth  the  blasphemer  out  of  the  camp  and 
stoned  him  with  stones;  and  the  children  of  Israel 
did  as  the  Lord  commanded  Moses." 

That  this  was  a  case  of  first  impression  is  shown 
by  the  fact  that  Moses  did  not  venture  an  opinion 
off-hand,  but  had  the  prisoner  put  in  ward  until  he 
had  consulted  the  Lord.  Inasmuch  as  the  court  pro- 
nouncing judgment  spoke  in  the  name  of  God,  and 
its  judgment  was  considered  the  judgment  of  God, 
the  phrase  here  used,  "to  ascertain  the  law  according 
to  the  mouth  of  the  Lord"  is  simply  another  way  of 
saying  that  the  court  deliberated  for  the  purpose  of 
reaching  a  decision,  which,  ipso  facto,  was  inspired 
of  God.  The  difficulties  that  the  case  presented  to 
the  court  were  these :  Was  there  a  crime  committed  ? 
Was  the  offender  punishable?  What  punishment 
should  be  meted  out  to  him? 

The  fact  that  this  man  was  arrested  indicated  that 
public  opinion  had  at  this  time  been  sufficiently  cryS' 
tallized  to  warrant  public  officials  in  taking  cognizance 
of  the  act  as  a  crime.  This  man  had  pronounced 
the  name  of  God  and  cursed.     We  are  not  told  what 


BLASPHEMY    OF    SON    OF    SHELOMITII.  95 

lie  said,  but  it  has  been  supposed  that  his  crime  con- 
sisted in  pronouncing  the  ineffable  name  of  God  ac- 
companied by  a  curse. 

The  second  question  was  a  more  difficult  one.  As- 
suming that  the  offense  was  a  crime  if  committed 
against  Israel's  God,  by  one  of  the  house  of  Israel, 
what  was  to  be  done  to  a  man  whose  father  was  an 
Egyptian  and  whose  status  as  a  son  of  Israel  was 
therefore  doubtful?  Is  it  a  crime  to  blaspheme  the 
name  of  a  god  in  whom  one  does  not  believe  ?  Could 
the  son  of  the  Egyptian  be  held  amenable  for  this 
crime?  It  appears  that  Moses'  decision  is  based  on 
the  general  principle  of  the  law  which  provided  that 
the  child  follows  the  status  of  the  mother,  and  as  she 
was  an  Israelitish  woman,  her  son  was  considered 
an  Israelite,  irrespective  of  his  paternity.  This  is, 
furthermore,  emphasized  by  the  fact  that  the  record  is 
careful  to  give  his  mother's  name  and  pedigree.  But 
what  would  have  been  the  decision  had  he  been  the 
son  of  an  Egyptian  woman?  The  question  is  not 
answered  in  this  case,  but  it  evidently  must  have 
arisen,  for  as  we  shall  shortly  see,  in  the  general  law 


96  LEADING    CASES    IN   THE    BIBLE. 

that  was  promulgated  on  this  subject,  this  case  is 
provided  for. 

The  court  consulted  and  decided  that  a  crime  had 
been  committed,  that  the  offender  was  amenable  to 
the  law,  and  that  he  should  be  stoned  to  death.  In 
the  sentence  of  the  court,  the  witnesses,  that  is,  those 
who  heard  the  blasphemy,  are  directed  to  place  their 
hands  upon  his  head.  This  was  analogous  to  the 
custom  of  sacrificing,  where  the  persons  bringing  the 
sacrifice  placed  their  hands  upon  the  head  of  the 
sacrificial  animal.  The  animal  was  offered  by  the 
hands  of  the  persons  who  sacrificed  to  the  deity,  and 
their  sins  or  offenses  were  to  be  atoned  for  by  the 
sacrificial  offering.  Thus  the  persons  who  were  in  a 
sense  parties  to  the  crime,  merely  from  having  heard 
the  blasphemy,  offer  the  offender  as  a  sacrifice  to  the 
insulted  deity,  and  thereby  avert  the  divine  wrath 
from  themselves. 

The  blasphemer  was  stoned  to  death  by  "all  the 
assembly  (Hebrew:  Edah),  the  select  men  of  the 
people,  who  acted  as  executioners,  and  perhaps  were 
also  the  associate  justices  with  whom  Moses  deliber- 
ated before  rendering  judgment. 


BLASPHEMY    OF    SON    OF    SHELOMITH.  97 

After  the  sentence  of  the  court  was  carried  out,  a 
general  law  to  cover  this  and  similar  cases  was  for- 
mulated. Judging  from  the  proximity  of  the  text 
of  this  special  case  and  the  general  law,  it  might  be 
supposed  that  the  latter  was  passed  immediately 
after,  or  even  before,  the  execution  of  the  sentence, 
but,  the  mere  proximity  of  laws  or  texts  in  the  Bible 
proves  nothing  regarding  their  chronology.  The 
general  law  was  no  doubt  much  later  than  the  special 
case  which  is  here  cited,  and  sums  up  the  law  on  the 
subject  in  a  brief  sententious  manner,  thus:  ''And 
thou  shalt  speak  unto  the  children  of  Israel  saying. 
Whoever  curseth  his  god  shall  bear  his  sin,  and  he 
that  pronounceth  the  name  of  the  Lord  shall  be  put 
to  death,  and  all  the  assembly  shall  stone  him ;  as  well 
the  stranger  as  the  native  when  he  pronounceth  the 
Name  shall  be  put  to  death." 

The  general  law  seems  to  have  been  especially  made 
to  cover  the  point  that  was  raised  but  not  decided  in 
the  case  of  the  son  of  the  Egyptian.  If  he  had  been 
the  son  of  an  Egyptian  woman  he  would  not  have 
been  an  Israelite;  and  the  question  as  to  whether  he 
7 


gg  LEADING    CASES    IN    THE    BIBLE. 


could  have  been  punished  would  have  been  a  more 
difficult  one.  This  question  is  now  settled.  The 
stranger  as  well  as  the  native  is  punishable  with  death 
if  he  blasphemes  the  name  of  the  Lord.  If  the 
stranger  blasphemes  his  own  gods  the  Jewish  law 
takes  no  cognizance  of  it.  If  a  man  blasphemes  his 
god  let  him  bear  his  sin— let  him  suffer  such  punish- 
ment as  his  god  may  mete  out  to  him ;  but  if  he  pro- 
nounces the  name  of  the  Lord,  and  is,  for  the  time 
being  under  the  jurisdiction  of  the  Jewish  law,  let 
him  be  punished  with  death. 

That  the  crime  of  blasphemy  was  akin  to  the  crime 
of  treason  is  shown  in  several  other  passages  of  the 
Bible.  Isaiah  speaks  of  the  people  cursing  their  king 
and  their  god  (Isaiah  VIII,  21),  and  in  Naboth's  case 
(1  Kings  XXI,  10),  the  crime  with  which  he  was 
charged  was  "Thou  didst  blaspheme  God  and  the 
King."  It  indicates  what  was  before  stated,  that 
when  the  people  attained  national  dignity  the  na- 
tional god  was  guarded  like  the  king,  and  offenses 
against  him  were  similarly  punished.  As  long  as 
the  people  were  living  in  a  patriarchal  state  an  offense 


BLASPHEMY    OF    SON    OF    SHELOMITH.  99 

against  the  gods  was  an  offense  against  the  head  of 
the  family,  for  the  gods  were  household  gods;  and 
this  we  see  in  the  case  of  Gideon,  whose  offense  really 
was  against  his  father  in  breaking  down  his  father's 
altar  and  sacred  grove. 

So  careful  were  the  Jews  not  to  utter  the  sacred 
name  of  God  that  the  original  pronunciation  of  the 
name  of  Jehovah  has  been  lost,  and  it  is  only  as  a 
result  of  modern  painstaking  scholarship  that  its 
probable  sound  "Yahweh"  has  been  recovered.  The 
early  translators  of  the  Bible  carefully  avoided  it; 
the  Greek  translated  it  "Ho  kurios";  the  Latin 
translated  it  "Dominus,"  both  meaning  "Master" 
or  "Lord";  and  from  these  translations  we  have  the 
modern  terms,  "Lord,"  "Herr,"  "Sieur,"  and  the 
like. 

Josephus,  in  his  desire  to  curry  favor  with  the 
Romans,  went  so  far  as  to  say  that  according  to 
Jewish  law  it  was  a  crime  to  blaspheme  other  gods; 
but  the  law  in  the  Case  of  the  Blasphemer  is  clearly 
to  the  contrary. 

The  reader  of  the  Bible  will  find  appended  to  the 


100  LEADING    CASES    IN    THE    BIBLE. 

law  of  the  Blasphemer,  and  apparently  forming  a 
part  of  it,  certain  laws  (Leviticus  XXIV,  17-22) 
which  have  nothing  to  do  with  the  law  of  the  blas- 
phemer, and  have  been  interpolated  because  they  also 
refer  to  capital  crimes,  and  lay  down  the  general  law 
that  the  stranger  and  the  native  are  equally  liable. 

In  order,  therefore,  to  read  properly  the  Case  of 
the  Blasphemer  as  it  is  recorded  in  the  twenty-fourth 
chapter  of  Leviticus,  read  first  from  verse  10  to  verse 
14  inclusive,  and  then  read  verse  23,  which  will  be 
found  to  connect  directly  with  verse  14.  Verses  15 
to  22  are  obviously  interpolated.  Verses  15  and  16 
should  be  read  after  verse  23,  and  with  these  verses 
the  law  concerning  blasphemy  is  concluded. 


THE  CASE  OF  ZELOPHEHAD'S  DAUGHTERS. 

Numbers  XXVII,  1-11,  XXXVI,  1-13;  Joshua 
XVII,  1-6. 

This  case  is  unique.  It  is  the  only  ease  reported  in 
the  Bible  in  which  property  rights  are  decided  by  a 
regular  judicial  proceeding,  and  in  which  the  parties 
are  known.  It  is  unique,  furthermore,  because  of 
the  reopening  of  the  case  upon  the  petition  of  the 
defendants  and  the  intrusion  of  a  political  question 
to  modify  the  original  decision.  The  case  is  reported 
three  times,  a  fact  which  sufficiently  indicates  its  im- 
portance. The  account  in  Numbers,  chapter  XXVII, 
begins  thus: 

"Then  came  the  daughters  of  Zelophehad,  the  son 
of  Hepher,  the  son  of  Gilead,  the  son  of  Machir,  the 
son  of  Menasseh,  of  the  families  of  Menasseh,  the 
son  of  Joseph :  and  these  are  the  names  of  his  daugh- 
ters, Mahlah,  Noah,  Hogiah,  and  Milcah  and  Tirzah. ' ' 
Here  for  the  first  time  we  have  a  record  of  women 
appearing  as  plaintiffs.     This  is  the  more  remarkable 

101 


102  LEADING    CASES    IN    THE    BIBLE. 

when  we  consider  the  status  of  women  in  the  ancient 
oriental  society.  "And  they  stood  before  Moses,  and 
before  Eleazar  the  priest,  and  before  the  princes 
and  all  the  assembly,  by  the  door  of  the  tabernacle 
of  the  assembly."  The  high  court  before  which  this 
case  was  presented  consisted  of  Moses,  representing 
the  political  power;  Eleazar,  the  high  priest,  repre- 
senting the  ecclesiastical  power,  and  the  princes  or 
chieftains,  representing  the  tribal  organizations,  and 
the  assembly  or  selectmen.  The  Court  sat  at  the 
door  of  the  sanctuary.  Anciently,  the  judgment 
place  was  at  the  gate  of  the  town  where  the  market 
place  was;  later  on  it  was  at  any  one  of  the  gates  of 
the  city.  Finally,  the  notion  that  judgment  was 
spoken  at  the  gate  had  become  so  familiar  that  when 
the  court  was  removed  to  the  sanctuary  at  Jerusalem, 
it  sat  at  the  door  of  the  sanctuary,  even  as  in  the 
report  of  this  case  it  sat  at  the  door  of  the  tabernacle 
in  the  wilderness. 

The  five  women  then  approached  the  court  in  ses- 
sion saying,  "Our  father  died  in  the  wilderness  and 
he  was  not  in  the  company  of  them  that  gathered 


ZELOPHEHAD'S    DAUGHTERS.  103 

themselves  together  against  the  Lord  in  the  company 
of  Korah";  hence  was  not  attaint  and  could  transmit 
his  inheritance,  "but  died  in  his  own  sin,"  a  natural 
death,  "and  had  no  sons."  Hence  his  inheritance 
would,  under  the  old  law  descend  to  collateral  kins- 
men, and  the  name  of  the  deceased  would  be  for- 
gotten in  his  family.  Against  this  his  daughters 
protested,  "Why  should  the  name  of  our  father  be 
done  away  from  among  his  family,  because  he  hath 
no  son?"  Why  should  not  the  name  be  perpetuated 
through  the  daughters  and  the  family  inheritance 
descend  to  them?  There  was  no  equitable  reason  for 
refusing  their  petition,  "Give  unto  us  therefore  a 
possession  among  the  brethren  of  our  father."  It 
seems  that  some  of  the  tribal  customs  still  showed 
traces  of  the  matriarchal  state  of  society,  in  which 
kinship  was  reckoned  through  the  females  and  the 
devolution  of  property  followed  a  similar  rule.  The 
matriarchate  was  not  entirely  unknown  among  the 
ancient  Hebrews  and  there  are  Bible  references  which 
are  inexplicable  upon  any  other  theory.  Perhaps 
some  such  traditional  rights  had  persisted,  unchanged 


104  LEADING    CASES    IN    THE    BIBLE. 

by  the  common  law  of  the  nation,  in  certain  families 
of  Menasseh,  or  perhaps  in  the  whole  tribe,  just  as 
customs  of  the  manor  persisted  in  England,  and  local 
customs  everywhere  survive  the  leveling  tendency  of 
general  legislation.  At  any  rate,  the  problem  pre- 
sented to  the  Court  was  not  one  to  be  dismissed  by 
mere  reference  to  the  law  limiting  the  right  of  in- 
heritance to  the  males,  and  the  court  retired  to  con- 
sult, "And  Moses  brought  their  cause  before  the 
Lord." 

If  we  follow  the  orthodox  interpretation  of  this 
verse,  it  means  that  Moses  went  to  consult  God  to 
obtain  light  in  this  case,  and,  as  the  next  verse  shows, 
God  gave  him  a  decision.  No  doubt  the  writer  of  the 
narrative  in  the  Book  of  Numbers  believed  that  this 
was  the  manner  of  the  procedure  and  that  Moses  ac- 
tually was  directed  by  God  to  decide  the  case  as  he 
did.  It  is  not  unlikely,  however,  that  the  true  pro- 
cedure was  simply  this:  That  Moses  retired  with  or 
without  the  rest  of  the  Court  to  consider  the  question, 
and  finally  rendered  the  decision.  The  Oriental 
looked  upon  the  judge  as  the  actual  representative  of 


ZELOPHEHAD'S    DAUGHTERS.  105 

God,  and  the  judgment  as  the  decision  of  God  him- 
self, probably  because  of  the  fact  that  the  judge  was 
usually  the  priest.  From  this  idea  arose  the  notion 
that  judgment  when  rendered  in  righteousness  is 
divine,  and  that  the  mouth  of  the  judge  is  as  the 
mouth  of  God.  In  the  Talmud  we  find  that  the 
general  dictum,  "The  words  of  the  rabbis  are  as 
acceptable  as  the  words  of  the  Torah,"  means  simply 
that  the  rabbis,  by  virtue  of  the  fact  that  they  were 
the  lawful  judicial  authorities,  had  the  right  to  render 
decisions,  and  that  their  decisions  had  the  same  force 
as  the  written  word  of  God.  This  view  is  generally 
accepted  in  the  Talmud,  and  is  commonly  attacked 
by  non-Jewish  theologians,  because  it  minimizes  the 
importance  of  the  written  word  of  the  Bible,  and 
hence  interferes  with  the  dogmatic  superstructures 
that  theology  has  reared  upon  the  biblical  texts.  But 
no  written  law  is  sufficient  for  all  times,  and  men 
must  interpret,  extend,  even  repeal  it,  when  the  con- 
ditions of  human  life  compel,  for  the  law  was  made 
for  man. 

After  Moses  had  "consulted  God"  he  reached  a 


106  LEADING    CASES    IN    THE    BIBLE. 

decision,  ''The  Lord  spoke  unto  Moses  saying,  The 
daughters  of  Zelophehad  speak  right;  thou  shalt 
surely  give  them  a  possession  of  an  inheritance  among 
their  father's  brethren;  and  thou  shalt  cause  the  in- 
heritance of  their  father  to  pass  unto  them."  Thus 
far  the  decision  in  this  case.  No  reason  is  assigned 
for  it  and  no  general  principle  is  laid  down  as  its 
foundation.  It  appears  to  have  been  a  judgment 
rendered  in  this  case  because  of  some  circumstances 
unknown  to  us— more  than  likely  because  of  some 
special  rule  of  inheritance  which  existed  in  this  fam- 
ily or  tribe.  If  w^e  note  the  precision  with  which  the 
names  of  the  parties  and  their  pedigree  are  given  in 
the  opening  verses,  we  are  strengthened  in  the  view, 
that  the  decision  was  one  which  was  dictated  by  a 
special  custom  obtaining  in  this  family  or  tribe,  more 
especially  when  it  is  noted  that  in  the  report  of  this 
case  in  Joshua  XVII,  1-6,  the  following  rule  is 
stated:  "because  the  daughters  of  Menasseh  had  an 
inheritance  among  his  sons. ' '  It  seems  to  distinguish 
the  tribe  of  Menasseh  from  the  other  tribes  and  limit 
the  rule  to  them.     This  is  in  full  harmony  with  the 


ZELOPHEHAD'S    DAUGHTERS.  107 

theory  that  this  was  a  special  ease,  decided  according 
1o  a  custom  peculiar  to  that  tribe,  and  that  it  was  not 
until  afterwards  that  the  decision  in  Zelophehad's 
case  became  a  general  law.  It  is  true  that  in  the 
biblical  text  the  general  law  is  cited  immediately  after 
the  decision.  But,  as  has  been  said,  the  mere  prox- 
imity of  laws  in  the  Bible  is  no  proof  of  their  relative 
chronological  order. 

The  general  law  of  intestate  succession  which  was 
based  on  this  decision  was  as  follows,  "And  thou 
shalt  speak  unto  the  children  of  Israel,  saying,  If  a 
man  die  and  have  no  son  then  ye  shall  cause  his  in- 
heritance to  pass  to  his  daughter,  and  if  he  have  no 
daughter,  then  ye  shall  give  his  inheritance  unto  his 
brethren.  And  if  he  have  no  brethren,  then  shall  ye 
give  his  inheritance  unto  his  father's  brethren.  And 
if  his  father  have  no  brethren,  ye  shall  give  his  in- 
heritance unto  his  kinsman  that  is  next  to  him  of  his 
family,  and  he  shall  possess  it:  and  it  shall  be  unto 
the  children  of  Israel  a  statute  of  judgment,  as  the 
Lord  commanded  Moses." 

The  decision  rendered  by  the  court  was,  however, 


108  LEADING    CASES    IN    THE    BIBLE. 

not  allowed  to  rest  undisturbed.  By  it  the  daughters 
of  Zelophehad  had  been  declared  to  be  the  lawful 
heiresses  of  their  father's  estate.  The  parties  ag- 
grieved were  the  next  of  kin,  who,  in  default  of  male 
issue,  had,  under  the  general  custom,  the  right  of 
inheritance.  They  were,  therefore,  practically  the 
defendants  in  the  original  proceeding,  which  may  be 
likened  to  an  action  of  ejectment  brought  by  the 
daughters  to  try  the  title  to  their  father's  estate. 
The  defendants  appealed  from  the  decision  and  sought 
to  have  the  case  reopened.  (Numbers  XXXVI,  1- 
13)  "And  the  selectmen  of  the  families  of  the  chil- 
dren of  Gilead  the  son  of  Macliir,  the  son  of  Menasseh 
of  the  families  of  the  sons  of  Joseph,  came  near  and 
spake  before  Moses,  and  before  the  princes,  the  select- 
men of  the  children  of  Israel."  The  selectmen  were 
under  the  patriarchal  system  the  representatives  of 
their  respective  families,  the  presidents,  as  it  were, 
of  the  several  little  corporations  which  constituted 
the  tribe,  "and  they  said,  the  Lord  commanded  my 
lord  to  give  the  land  for  an  inheritance  by  lot  to  the 
children  of  Israel;  and  my  lord  was  commanded  by 


ZELOPHEHAD'S    DAUGHTERS.  109 

the  Lord  to  give  the  inheritance  of  Zelophehad  our 
brother  unto  his  daughters.  And  if  they  be  married 
to  any  of  the  sons  of  the  other  tribes  of  the  children 
of  Israel,  then  will  their  inheritance  be  taken  from 
the  inheritance  of  our  fathers  and  be  added  to  the 
inheritance  of  the  tribe  whereunto  they  shall  be  re- 
ceived ;  so  will  it  be  taken  from  the  lot  of  our  inherit- 
ance. And  when  the  jubilee  of  the  children  of  Israel 
shall  be,  then  will  their  inheritance  be  added  to  the 
inheritance  of  the  tribe  whereunto  they  are  received; 
so  shall  their  inheritance  be  taken  away  from  the  in- 
heritance of  the  tribe  of  our  fathers. ' ' 

The  point  made  by  the  defendants  was  based  upon 
the  fundamental  conception  of  the  tribal  ownership 
of  land.  The  individual  had  the  perpetual  use  there- 
of in  his  own  family,  but  land  was  inalienable,  except 
with  the  consent  of  the  tribe.  The  decision  in  Zelo- 
phehad's  case  had  unsettled  this  rule.  By  making 
the  women  absolute  heiresses  in  default  of  male  issue, 
it  subjected  the  property  to  the  danger  of  absorption 
by  other  tribes  in  the  event  of  the  marriage  of  an 
heiress   outside  the   tribe   of  her   father,   and  there 


110  LEADING    CASES    IN   THE    BIBLE. 

would  be  eventually  a  mixing  up  of  tribal  lines  that 
would  obliterate  them  altogether.  The  ease  seems  to 
mark  the  transition  from  the  tribal  to  the  individual 
ownership  of  land  and  from  the  old  tribal  organiza- 
tions into  the  greater  national  union  of  all  Israel. 
The  chiefs  of  the  tribe  of  Joseph  were  not  yet  pre- 
pared for  this  step,  for,  as  they  pointed  out,  at  the 
time  of  the  jubilee,  when  every  man's  land  returned 
to  him  or  his  heirs,  this  land  would  no  longer  return 
to  the  members  of  the  tribe  of  Menasseh,  but  would 
fall  to  some  descendant  of  the  daughters  of  Zelophe- 
had,  who  would  not  be  a  member  of  the  tribe  of 
Menasseh,  but  of  the  tribe  to  which  the  husband  of 
the  heiress  belonged.  This  had  to  be  guarded  against. 
The  court  was  impressed  with  the  force  of  the  argu- 
ment, and  apparently  held  the  same  conservative  view 
concerning  the  political  question  involved.  It,  there- 
fore, reopened  the  case  and  modified  the  decree  al- 
ready made.  "And  Moses  commanded  the  children 
of  Israel  according  to  the  word  of  the  Lord,  saying. 
The  tribe  of  the  sons  of  Joseph  hath  said  well.  This 
is  the  thing  which  the  Lord  doth  command  concerning 


ZELOPHEHAD'S    DAUGHTERS.  m 

the  daughters  of  Zelophehad  saying,  Let  them  marry 
to  whom  they  think  best;  only  to  the  family  of  the 
tribe  of  their  father  shall  they  marry.  So  shall  not 
the  inheritance  of  the  children  of  Israel  remove  from 
tribe  to  tribe;  for  every  one  of  the  children  of  Israel 
shall  keep  himself  to  the  inheritance  of  the  tribe  of 
his  fathers. ' '  This  decision,  therefore,  prevented  the 
injury  to  the  tribal  rights  of  the  defendants,  and  es- 
tablished the  right  of  inheritance  of  the  daughters 
upon  the  condition  that  they  marry  within  their  own 
tribe. 

We  are  assured,  however,  that  the  five  young 
women  through  whose  case  the  law  of  Intestate  Suc- 
cession was  established  were  wise  enough  not  to  for- 
feit their  inheritance,  for,  "even  as  the  Lord  com- 
manded Moses  so  did  the  daughters  of  Zelophehad: 
for  Mahlah,  Tirzah,  and  Hoglah  and  Milcah,  and 
Noah  the  daughters  of  Zelophehad,  were  married 
unto  their  father's  brothers'  sons;  and  they  were 
married  into  the  families  of  the  sons  of  Menasseh 
the  son  of  Joseph,  and  their  inheritance  remained  in 
the  tribe  of  the  family  of  their  father."     As  in  the 


112  LEADING    CASES    IN    THE    BIBLE. 

former  decision  of  this  case,  the  ruling  of  the  court 
became  the  basis  for  a  general  statute,  "And  every 
daughter  that  possesseth  an  inheritance  in  any  tribe 
of  the  children  of  Israel  shall  be  wife  unto  one  of  the 
family  of  her  father,  that  the  children  of  Israel  may 
enjoy  every  man  the  inheritance  of  his  fathers. 
Neither  shall  the  inheritance  remove  from  one  tribe 
into  another  tribe ;  but  every  one  of  the  tribes  of  the 
children  of  Israel  shall  keep  himself  to  his  own  in- 
heritance." Thus  the  special  custom  of  the  tribe  of 
Menasseh  became,  through  the  medium  of  the  case  of 
Zelophehad's  daughters,  the  general  law  for  all 
Israel. 

The  interest  of  this  case  lies  in  the  fact  that  it  is 
a  guide  to  the  manner  in  which  the  ancient  customs 
of  the  wandering  Hebrew  tribes  crystallized  into  law 
and  it  shows  how  the  local  or  special  custom  of  the 
dominant  tribe  might  become  the  general  law  of  the 
land.  For  the  influence  of  the  tribe  of  Menasseh  was 
very  great,  since  it  was  a  division  of  the  great  tribe  of 
Joseph,  the  ruling  tribe  in  northern  Palestine. 


THE    TRIAL    OF    ACIIAN    BY    LOT. 

Joshua  VII,  1-26. 

Among  the  Hebrews,  God  was  supposed  to  be  pres- 
ent in  the  courts  of  justice,  and  judgment  was  pro- 
nounced in  his  name.  The  trial  of  a  case,  therefore, 
partook  somewhat  of  a  sacramental  character.  As 
has  already  been  suggested,  this  was  due,  no  doubt, 
to  the  fact  that,  at  a  certain  period  in  the  history  of 
the  people,  the  offices  of  priest  and  judge  were  united ; 
and  the  people  went  to  the  priest  to  decide  their  dis- 
putes, even  as  they  went  to  him  for  guidance  in  re- 
ligious matters.  Divination  and  sorcery  in  their 
various  forms  were  practiced,  and  decisions  and 
opinions  obtained  by  these  means  were  given  by  the 
priests.  One  method  of  obtaining  a  decision  was  by 
casting  lots.  "Chance"  was  not,  as  with  us,  deemed 
fortuitous,  but  was  supposed  to  be  a  direct  result  of 
divine  action.  Hence,  the  casting  of  a  lot,  when 
done  by  one  in  office,  was  supposed  to  be  an  expres- 
sion of  divine  will,  and  gave  the  issue  in  doubtful 

matters. 

8  113 


114  LEADING    CASES    IN    THE    BIBLE. 

A  remarkable  instance  of  the  use  of  the  lot  in  the 
determination  of  a  question  involving  life  and  prop- 
erty is  furnished  in  the  recorded  case  of  Achan,  in 
the  seventh  chapter  of  the  Book  of  Joshua.  The  cir- 
cumstances of  the  case  are  as  follows: 

After  the  city  of  Jericho  had  fallen,  the  entire  city 
with  all  its  inhabitants,  and  with  all  the  property 
contained  in  it  was  ordered  to  be  destroyed.  It  was 
"Herem,"  that  is,  devoted  to  God.  It  is  recorded 
(Joshua  VI,  21)  that  the  Hebrews  ''utterly  destroyed 
(devoted)  all  that  was  in  the  city,  both  man  and 
woman,  young  and  old,  and  ox  and  sheep,  and  ass, 
with  the  edge  of  the  sword."  It  seems,  however, 
that  one  Achan  had  secretly  appropriated  some  of 
the  spoils  of  the  devoted  city.  As  a  result,  God  is 
said  to  have  been  angry  with  the  people,  and  to  have 
withdrawn  his  favor  and  assistance  from  them,  so 
that  they  could  not  maintain  themselves  against  the 
foe. 

When  Joshua  was  informed  of  this  fact,  he  de- 
terjnined  to  regain  the  divine  favor  by  discovering 
and  punishing  the  offender,  a  problem  that  presented 


TRIAL    OF    ACHAN    BY    LOT.  115 

no  difficulties  to  him,  since  he  did  not  depend  upon 
human  testimony  to  discover  the  criminal.  He,  there- 
fore, notified  the  people,  "Sanctify  yourselves  for 
the  morrow,  for  thus  saith  the  Lord,  the  God  of 
Israel,  There  is  Herem  in  thy  midst,  oh  Israel;  and 
thou  canst  not  stand  before  thine  enemies  until  ye 
take  away  the  Herem  from  your  midst.  In  the 
morning  therefore,  ye  shall  be  brought  according  to 
your  tribes  and  it  shall  be  that  the  tribe  which  the 
Lord  shall  seize  shall  come  according  to  its  families; 
and  the  family  which  the  Lord  shall  seize,  shall  come 
by  households;  and  the  household  which  the  Lord 
shall  seize,  shall  come  man  by  man;  and  it  shall  be 
that  he  that  is  seized  with  the  Herem  shall  be  burnt 
with  fire,  he  and  all  that  he  hath,  because  he  has 
transgressed  the  covenant  of  the  Lord,  and  because 
he  has  wrought  folly  in  Israel." 

God  himself  was  going  to  discover  the  ofi'ender  by 
a  means  which  is  not  fully  expressed  in  the  biblical 
record,  but  which  appears  clearly  enough.  At  the 
central  sanctuary  of  the  camp,  the  priests  were  to 
cast  lots  for  the  various  tribes  of  Israel,  and  the  tribe 


116  LEADING    CASES   IN   THE    BIBLE. 

wliicli  was  ' '  seized, ' '  that  is  to  say,  which  was  marked 
by  the  fatal  lot,  was  to  be  balloted  for  according  to 
its  families  and  the  family  according  to  its  houses; 
and  the  house  according  to  its  members,  one  by  one; 
and  thus  the  lot  would  ultimately  fall  upon  one  man 
who  would  thereby  become  known  as  the  offender. 

Skeptical  critics  see  in  this  method  of  discovering 
the  offender  merely  a  piece  of  chicanery  on  the  part 
of  the  priests,  who  are  presumed  to  have  discovered 
the  real  offender  by  more  natural  means,  and  to  have 
resorted  to  this  remarkable  method  of  discovering 
him  merely  for  the  purpose  of  overawing  the  people 
and  strengthening  their  own  power  over  them.  It  is 
more  likely  that  the  determination  of  the  offender 
by  lot  was  resorted  to,  so  as  to  obtain  through  fear  a 
confession  from  the  guilty  person.  However  it  may 
be,  this  procedure  was  followed,  and  the  lot  eventu- 
ally fell  on  Achan,  the  son  of  Carmi,  the  son  of  Zabdi, 
the  son  of  Zerah,  of  the  tribe  of  Judah. 

Had  this  method  of  fixing  the  guilt  on  the  real 
offender  been  believed  to  be  unfailing,  Achan  would 
immediately  have  been  put  to  death.      The  record. 


TRIAL    OF    ACHAN    BY    LOT.  117 

however,  shows  that  Joshua  was  by  no  means  con- 
vinced that  Achan  was  the  real  offender,  and  he  said 
to  him,  "My  son,  give,  I  pray  thee,  honor  to  the 
Lord,  the  God  of  Israel  and  make  confession  unto 
him,  and  tell  me  now  what  thou  hast  done.  Do  not 
hide  it  from  me." 

Joshua,  from  his  general  experience  in  warfare, 
probably  knew  that  it  was  no  uncommon  thing  for 
the  soldiers  to  appropriate  some  of  the  spoils  of  war, 
and  that,  in  all  probability,  many  of  the  soldiers  had 
offended  in  this  manner  at  the  fall  of  Jericho.  To 
make  an  example  of  one  was  deemed  sufficient,  and 
Joshua  no  doubt  felt  satisfied  that,  if  the  lot  fell 
upon  any  one  of  those  who  had  been  guilty,  a  con- 
fession of  guilt  would  eventually  follow.  It  was, 
therefore,  unnecessary  for  Joshua  to  compel  Achan 
to  confess  by  threat.  His  simple  request  for  informa- 
tion was  followed  by  a  full  confession,  "And  Achan 
answered  Joshua  and  said,  Indeed,  I  have  sinned 
against  the  Lord,  the  God  of  Israel,  and  thus  and 
thus  have  I  done.  When  I  saw  among  the  spoils  a 
goodly  Babylonian  cloak,  and  two  hundred  shekels 


118  LEADING    CASES    IN    THE    BIBLE. 

of  silver  and  an  ingot  of  gold  of  five  hundred  shekels 
weight,  then  I  coveted  them  and  I  took  them,  and 
behold  they  are  now  hid  in  the  earth  in  the  midst  of 
my  tent;  and  the  silver  under  it."  Joshua  there- 
upon sent  messengers  to  Achan's  tent  and  discovered 
the  articles  which  he  had  described,  and  then  there 
was  meted  out  to  Achan  the  punishment  for  his 
offense,  in  accordance  with  the  law  of  the  times  which 
"visited  the  iniquities  of  the  fathers  upon  the  chil- 
dren, ' '  a  law  which  was  not  changed  until  the  promul- 
gation of  the  Deuteronomic  Code,  wherein  it  was 
ordained  that  "fathers  shall  not  be  put  to  death  for 
the  children,  neither  shall  the  children  be  put  to 
death  for  the  fathers:  for  his  own  sin  shall  every 
man  be  put  to  death"  (Deuteronomy  XXIV,  16). 

According  to  the  old  patriarchal  notion,  the  family 
was  a  unit  and  its  members  were  held  responsible  for 
the  conduct  of  each  other.  Hence  the  children  suf- 
fered for  the  crime  of  the  parent  and  vice  versa. 
Under  this  fierce  law,  a  crime  resulted  in  the  blotting 
out  of  an  entire  family,  and  it  was  not  until  late  in 
the  time  of  the  Kings  that  a  more  modern  notion  of 


TRIAL    OF    ACHAN    BY    LOT.  Hg 

the  nature  of  crime  prevailed.  The  individual  was 
made  responsible  for  his  acts,  and  the  family  was  no 
longer  compelled  to  suffer  for  the  crime  committed 
by  any  one  of  its  members.  The  old  notion,  however, 
of  the  solidarity  of  the  family  has  not  entirely  died 
out,  even  in  our  own  day.  It  expresses  itself  very 
often  in  social  ostracism  of  the  innocent  members  of 
a  criminal's  household.  Modern  society  uncon- 
sciously testifies  to  the  old  belief,  that  blood  rela- 
tionship attainted  all  those  who  Avere  connected  with 
the  real  offender. 

Joshua  then  proceeded  to  execute  the  sentence  of 
the  law  and  he  took  Achan  and  the  silver  and  the 
cloak,  and  the  ingot  of  gold  and  his  sons  and  his 
daughters  and  his  oxen  and  his  asses  and  his  sheep, 
and  his  tent  and  everything  that  he  had,  and  brought 
them  up  to  the  Valley  of  Achor,  and  there  Joshua 
said  to  Achan,  "As  thou  hast  troubled  us,  the  Lord 
shall  trouble  thee  this  day;  and  all  Israel  stoned  him 
with  stones  and  burnt  them  with  fire,  and  stoned 
them  with  stones,  and  they  raised  over  him  a  great 
heap  of  stones  unto  this  day." 


120  LEADING    CASES    IN    THE    BIBLE. 

Although  Joshua  and  the  people  of  Israel  were  at 
the  time  conducting  a  great  military  campaign  in  the 
enemy's  country,  they,  nevertheless,  in  stoning  Achan 
outside  the  camp,  observed  the  old  custom  of  taking 
criminals  outside  the  boundaries  of  the  town  for  ex- 
ecution. Later  in  the  history  of  the  Jewish  people, 
the  larger  towns  had  a  regular  place  of  execution 
outside  the  walls,  which  w^as  shunned  by  the  people, 
just  as  the  people  in  later  days  shunned  the  gallows 
tree. 


THE    CASE    OF    JEPHTHAH'S    DAUGHTER. 
Judges  XI,  29^0. 

For  the  study  of  ancient  law  and  custom,  the  Book 
of  Judges  and  the  Book  of  Genesis  are  the  most  im- 
portant in  the  entire  Bible.  The  former  especially 
is  replete  with  traditions  hoary  with  age,  reflecting 
conditions  of  law  and  society  remotely  anterior  to  the 
legislation  found  in  the  Pentateuch,  and  to  the  con- 
dition of  society  described  in  the  Book  of  Kings. 
Much  of  the  Pentateuchal  legislation  presupposes  a 
well-organized  society,  differing  materially  from  that 
described  in  the  Book  of  Judges,  when  "there  was  no 
king  in  Israel ;  every  man  did  that  which  was  right  in 
his  own  eyes." 

The  fate  of  Jephthah's  daughter  was  determined 
by  his  success  in  his  campaign  against  the  Ammonites. 
After  he  entered  the  enemy's  country,  "Jephthah 
vowed  a  vow  unto  the  Lord  and  said,  If  thou  wilt 
deliver  the  sons  of  Ammon  into  my  hands,  then  shall 
it  be  that  whatsoever  cometh  forth  out  of  the  doors 

121 


122  LEADING    CASES    IN    THE    BIBLE. 

of  my  house  towards  me  when  I  return  in  peace  from 
the  sons  of  Ammon,  shall  surely  be  the  Lord's  and  I 
will  offer  it  up  for  a  burnt  offering." 

It  was  no  uncommon  thing  among  the  ancients,  the 
ancient  Hebrews  included,  for  men  to  seek  the  favor 
of  the  Deity  by  making  vows,  the  performance  of 
which  depended  upon  the  success  of  some  contem- 
plated undertaking.  Such  a  vow  was  in  the  nature  of 
a  contract,  whereby  the  maker  of  the  vow  agreed  that 
in  case  success  attended  his  enterprise,  he  would  per- 
form certain  services  or  offer  certain  sacrifices  or 
subject  himself  to  certain  penance  pleasing  to  the 
Deity.  These  vows  were  made  with  solemn  formality 
and  were  absolutely  binding  and  irrevocable,  and,  if 
the  wish  of  the  person  making  the  vow  was  granted 
and  his  enterprise  successful,  the  fear  of  offending 
the  Deity  by  breaking  the  vow  was  the  only  sanction 
required  to  insure  its  fulfillment.  Thus,  Jacob  on 
his  way  to  Laban's  house,  on  the  morning  after  he 
had  his  dream  of  the  angels  ascending  and  descend- 
ing the  ladder  reaching  to  heaven,  was  filled  with 
fear,  and  he  sanctified  the  place  in  which  he  had  been 


JEPHTHAH'S    DAUGHTER.  123 

sleeping  by  setting  up  a  pillar  there  and  consecrating 
it  with  oil.  Conscious  of  the  proximity  of  the  Deity, 
he  entered  into  a  contract  with  him  which  was  ex- 
pressed in  these  words  (Gen.  XXVIII,  20-22)  :  "And 
Jacob  vowed  a  vow,  saying,  if  God  will  be  with  me  in 
this  way  that  I  am  going;  and  will  give  me  bread  to 
eat  and  raiment  to  put  on,  so  that  I  come  again  to 
my  father's  house  in  peace,  then  shall  the  Lord  be 
my  God,  and  this  stone  which  I  have  set  up  for  a 
pillar  shall  be  a  house  of  God;  and  of  all  that  thou 
shalt  give  me,  I  will  surely  give  a  tenth  unto  thee." 
When  Jephthah  made  his  vow  and  promised  to 
offer  up  as  a  sacrifice  whatever  came  forth  to  meet 
him  from  the  doors  of  his  house,  it  is  quite  likely 
that  he  meant  a  domestic  animal,  or  a  slave;  and  his 
consternation  and  grief  upon  seeing  his  daughter 
come  forth  to  meet  him  strengthens  this  view.  At 
any  rate,  after  having  made  his  vow,  ''Jephthah 
passed  over  unto  the  sons  of  Ammon  to  fight  against 
them,  and  the  Lord  delivered  them  into  his  hands. 
And  the  sons  of  Ammon  were  subdued  before  the 
sons  of  Israel." 


124  LEADING    CASES    IN    THE    BIBLE. 

"And  Jeplitliali  came  to  Mizpali  unto  his  house; 
and  behold,  his  daughter  came  out  to  meet  him  with 
timbrels  and  dances;  and  she  was  his  only  child. 
Besides  her,  he  had  neither  son  nor  daughter.  And 
it  came  to  pass  when  he  saw  her,  that  he  rent  his 
clothes  and  said,  Alas,  my  daughter,  thou  hast 
brought  me  very  low,  and  thou  art  one  of  them  that 
trouble  me,  for  I  have  opened  my  mouth  unto  the 
Lord,  and  I  cannot  go  back. ' '  So  great  was  the  fear 
of  offending  the  Deity  by  breaking  the  vow,  that 
Jephthah,  this  unconquered  warrior,  returning  from 
a  victorious  campaign,  master  of  a  great  army,  never 
thought  of  escaping  the  consequences  of  his  vow,  even 
though  it  involved  the  loss  of  his  only  child.  He  had 
opened  his  mouth  unto  the  Lord  and  he  could  not  go 
back. 

Furthermore,  there  may  be  seen  here  the  extent  of 
the  patria  potestas.  There  was  no  public  tribunal 
before  which  matters  affecting  the  family  could  be 
brought  for  decision;  in  each  household  the  head  of 
the  family  was  of  indisputable  authority,  the  absolute 
arbiter,  from  whose  decision  there  was  no  appeal. 


JEPHTHAH'S    DAUGHTER.  125 

Public  law  took  no  cognizance  of  family  matters; 
and  family  law,  so  far  as  it  may  be  called  law,  was 
simply  the  expressed  will  of  the  head  of  the  house- 
hold. The  fact  that  the  case  of  Jephthah's  daughter 
excites  no  comment  on  the  part  of  the  biblical  writer, 
even  though  she  was  offered  up  as  a  sacrifice  by  her 
father  in  fulfillment  of  a  vow,  indicates  that  the 
writer  accepted  the  view  that  Jephthah's  right  to 
kill  his  daughter  was  undisputed  and  indisputable. 

It  may  be  that  if  his  daughter  had  pleaded  for  her 
life,  Jephthah  might  have  been  induced  to  brave  the 
wrath  of  God  and  break  his  vow;  but  her  answer  to 
him  is  not  only  an  illustration  of  sublime  resignation, 
but  also  a  shining  example  of  determination  to  fulfill 
a  contract  solemnly  entered  into.  She  said  unto 
him,  ''My  father,  if  thou  hast  opened  thy  mouth 
unto  the  Lord,  do  to  me  according  to  that  which  hath 
proceeded  out  of  thy  mouth;  forasmuch  as  the  Lord 
hath  taken  vengeance  for  thee  of  thine  enemy,  even 
the  sons  of  Ammon."  It  was  not  merely,  therefore, 
that  she  urged  him  to  fulfill  his  vow,  but  also  that 
she  called  his  attention  to  the  fact  that  in  the  con- 


126  LEADING    CASES    IN    THE    BIBLE. 

tract  made  between  God  and  himself,  God  had  ful- 
filled his  part,  and  it  now  behooved  him  to  do  like- 
wise. And  she  said  unto  her  father,  "Let  this  thing 
be  done  to  me,  and  let  me  alone  for  two  months  that 
I  may  go  up  and  down  the  mountains  and  bewail  my 
virginity,  I  and  my  companions. ' '  This  brief  respite 
before  the  execution  of  his  vow  was  granted  to  her, 
and  at  the  end  of  that  time,  she  returned  to  her 
father,  "And  he  did  unto  her  according  to  his  vow 
which  he  had  vowed. ' ' 

Human  sacrifice  is  alluded  to  several  times  in  the 
Bible,  and  it  was  not  until  after  the  time  when  the 
theory  of  the  rights  and  duties  of  the  patriarchal 
family  had  undergone  considerable  modification  that 
positive  legislation  put  an  end  to  it.  As  long  as 
the  father  was  the  master  of  his  own  family,  ac- 
countable to  no  man  for  his  actions  concerning 
it,  there  was  no  way  in  which  his  power  could  be 
limited.  This  theory  remained  in  full  force  as  long 
as  the  Hebrews  lived  a  nomadic  life,  and  even  some 
time  after  they  had  settled  in  Palestine;  but  grad- 
ually the  requirements  of  a  milder  civilization,  and 


JEPHTHAH'S    DAUGHTER.  127 

the  influences  of  agricultural  life,  which  requires 
men  to  dwell  together  in  harmony  and  peace,  modi- 
fied the  ancient  rights  of  patriarch.  Under  such  con- 
ditions public  opinion  became  possible,  and  eventu- 
ally public  opinion  became  law.  The  father  could  no 
longer  put  his  children  to  death  because  public  opin- 
ion would  not  permit  it;  and  thus  gradually  the  un- 
restricted right  of  the  patriarch  was  modified,  and 
the  members  of  his  family  obtained  a  legal  status  and 
legal  rights,  until  eventually  the  individuality  of  each 
human  being  was  respected  and  protected  by  the  law. 

The  views  of  the  Talmudical  authorities  on  the 
law  of  the  case  of  Jephthah's  daughter  are  interest- 
ing, because  in  their  interpretation  we  may  discover 
fragments  of  the  old  Conmion  Law  of  the  Hebrews, 
and  observe  something  of  the  method  by  which  the 
written  law  was  applied  in  actual  practice. 

For  instance,  there  is  a  law  that  certain  animals  ai'e 
unclean  and,  therefore,  unfit  for  sacrifice ;  a  law  that 
is  not  alluded  to  in  the  record  of  this  case.  But  a 
Talmudist  very  pertinently  asks:  Suppose  an  un- 
clean animal  had  come  out  of  Jephthah's  house  to 


128  LEADING    CASES    IN    THE    BIBLE. 

meet  him.  Would  he  have  offered  it  as  a  sacrifice 
to  the  Lord!  The  reply  was  that  as  an  unclean 
animal  was  unfit  for  sacrifice,  Jephthah  would  not 
have  ofifered  it  had  it  come  forth  to  meet  him.  An- 
other Talmudist  raises  a  more  important  question. 
It  was  possible  under  the  Talmudic  law  for  a  man 
to  have  his  vow  annulled  if  it  was  made  under  mis- 
take or  under  duress— a  proceeding  somewhat  sim- 
ilar to  the  rescission  of  a  contract  in  our  own  days, 
upon  the  ground  of  accident,  mistake  and  the  like. 
Hence  the  Talmudist  asks:  "Why  did  not  Jephthah 
go  to  the  high  priest  and  have  this  vow  annulled?" 
According  to  tradition,  Phineas,  the  grandson  of 
Aaron,  was  high  priest  in  those  days,  and  Jephthah 
might  have  applied  to  him  as  the  supreme  judicial 
authority  to  annul  his  vow,  and  thus  save  his 
daughter's  life.  Another  Talmudist  answers,  that 
Jephthah  must  have  had  some  special  reason  for 
not  making  such  application,  or  that  Phineas  must 
have  had  some  special  reason  for  not  granting  it, 
presuming  that  it  was  made.  Another  lawyer,  leav- 
ing the  safe  ground  of  the  law,  reports  soliloquies 


JEPHTHAH'S    DAUGHTER.  129 

of  Phineas  and  Jephthah  concerning  this  case. 
Phineas,  being  high  priest,  said:  "If  Jephthah 
wants  his  vow  annulled,  let  him  come  to  me,"  and 
Jephthah,  being  commander-in-chief  of  the  army, 
was  too  proud  to  go  to  Phineas,  and  demanded  that 
Phineas  should  come  to  him;  and  thus  between  the 
pride  of  these  two  dignitaries,  the  girl  was  sacrificed. 
Then  another  lawyer  took  part  in  the  discussion, 
saying:  "If  it  is  true  that  Phineas  and  Jephthah 
in  their  pride  permitted  the  girl  to  go  to  her  death, 
then  they  were  her  murderers,  and  should  have  been 
held  responsible,  and  ought  to  have  been  punished." 
Assuming  the  premises,  the  conclusion  was  not  im- 
properly drawn.  The  facts  and  legal  ideas  added 
by  the  Talmudists  to  the  biblical  records  were  the 
result  of  their  knowledge  of  the  unwritten  legal  tra- 
dition, and  not,  as  so  many  modern  critics  would 
have  it,  of  their  overfondness  for  speculation  and 
theorizing.  There  is  no  doubt  that  the  biblical  rec- 
ords are  incomplete.  Only  a  fragment  of  the  writ- 
ten law  has  come  down  to  us,  and,  since  the  bulk 
of  the  law  was  transmitted  by  oral  tradition,   the 


130  LEADING    CASES    IN    THE    BIBLE. 

entire  written  law,  including  such  parts  as  may  have 
been  lost,  was  only  a  fragment  of  the  whole  body  of 
the  law.  Hence  the  traditions,  interpretations,  cus- 
toms, cases  and  opinions,  transmitted  from  genera- 
tion to  generation  by  men  whose  business  it  was  to 
know  the  law  and  expound  it,  and  finally  gathered 
in  the  Talmud,  must  ever  be  of  the  greatest  value 
in  explaining  and  understanding  the  Bible. 


THE  CASE  OF  BOAZ  AND  RUTH. 

Ruth   I -IV. 

The  Book  of  Ruth  contains  only  four  chapters,  but 
because  of  the  unaffected  picture  of  ancient  manners 
that  it  presents,  it  is  generally  considered  one  of  the 
most  interesting  books  in  the  Bible.  The  principal 
legal  questions  presented  in  this  book  are  the  ones 
involving  the  right  of  inheritance  to  land  under  the 
law  of  intestate  succession,  and  the  questions  arising 
out  of  the  right  of  redemption  of  an  estate  of  inherit- 
ance by  the  nearest  kinsman  so  that  it  may  not  fall 
into  the  hands  of  strangers,  and  that  the  "name  of 
the  dead  may  be  raised  upon  his  inheritance."  It 
is  probable  that  the  Book  of  Ruth  was  written  long 
after  the  events  which  it  narrates.  There  is  slight 
evidence  of  this  in  the  peculiar  phraseology  of  the 
fourth  chapter,  seventh  verse,  "Now  this  was  the 
manner  in  former  times  in  Israel."  The  facts  of 
the  case,  so  far  as  they  interest  us  in  their  legal 

aspect,  are  these: 

131 


132  LEADING    CASES    IN    THE    BIBLE. 

Elimelech,  living  in  Bethlehem,  owned  an  estate  in 
land.  During  a  famine,  he,  together  with  his  wife, 
Naomi,  and  his  two  sons,  Mahlon  and  Chilion,  left 
his  home  and  went  down  into  Moab  and  dwelt  there. 
Elimelech  died,  leaving  his  widow  and  two  sons  sur- 
viving him.  The  latter  married  Moabitish  women; 
the  name  of  the  one  was  Orpah  and  the  name  of  the 
other  Ruth;  and  they  continued  to  live  in  Moab  for 
about  ten  years.  Then  both  the  sons,  Mahlon  and 
Chilion,  died,  leaving  no  children,  and  their  mother, 
Naomi,  was  left  with  her  two  daughters-in-law.  She 
then  determined  to  return  to  Bethlehem,  and  at- 
tempted to  persuade  her  daughters-in-law  to  return 
each  to  her  mother's  house.  One  of  them,  Orpah, 
did  as  she  requested;  the  other,  Ruth,  insisted  upon 
accompanying  her,  saying,  ''Whither  thou  goest,  I 
will  go;  where  thou  lodgest,  I  will  lodge;  thy  people 
shall  be  my  people,  and  thy  God,  my  God;  where 
thou  diest  will  I  die,  and  there  will  I  be  buried." 
So  Naomi  and  Ruth  returned  to  Bethlehem. 

What  was  the  legal  status  of  the  parties  with  ref- 
erence to  Elimelech 's  estate  of  inheritance? 


BOAZ   AND   RUTH.  133 

When  Elimelech  died  leaving  a  widow  and  two 
sons,  his  estate  descended  absolutely  to  his  two  sons, 
the  older  of  whom  obtained  a  double  share.  It  is 
not  known  which  of  the  two  sons  was  the  first  to  die, 
but  this  is  a  matter  of  no  importance,  because  either 
would  have  inherited  from  the  other.  Both  of  them  \ 
being  dead,  the  estate  descended  to  the  nearest  male  ' 
kinsman  of  the  sons  of  Elimelech,  subject,  however, 

to  a  certain  inchoate  right  existing  in  the  widow  of 

i 

the  last  owner,  which  will  be  considered  later. 

When  Naomi  and  Euth  returned  to  Bethlehem 
they  were  so  poor  that  the  younger  woman  had  to 
glean  in  the  fields  behind  the  reapers,  for  the  purpose 
of  gathering  enough  food  to  maintain  them.  The 
Poor  Laws  of  the  Jews  provided  that  the  gleanings 
of  the  harvest  should  not  be  gathered  by  the  owner  of 
the  field,  but  must  be  left  on  the  ground  for  the  poor 
and  stranger;  and  it  was  by  virtue  of  this  beneficent 
law  that  Naomi  and  Ruth  were  able  to  subsist  with- 
out demanding  alms.  It  chanced  that  Ruth  gleaned 
in  the  field  of  Boaz,  a  kinsman  of  Elimelech,  and 
when  this  was  made  known  to  Naomi,  she  conceived 


134  LEADING    CASES    IN    THE    BIBLE. 

a  plan  of  bringing  Boaz  and  Ruth  together,  in  the 
hope  that  he,  as  her  kinsman,  would  marry  Ruth  and 
provide  for  them;  and  the  plan  succeeded.  The 
beauty  and  modesty  of  Ruth  attracted  Boaz,  and  he 
promptly  fell  in  love  with  her.  Now  came  the  real 
difficulty.  Boaz  was  not  the  nearest  kinsman,  and 
hence  had  no  right  to  Elimelech's  estate.  There  was 
one  nearer  than  he.  Boaz  determined  to  settle  this 
matter  immediately,  and  to  ascertain  legally  whether 
or  not  the  nearest  kinsman  was  prepared  to  take  the 
inheritance,  or  whether  he  would  renounce  his  rights. 
This  leads  to  the  beginning  of  the  fourth  chapter  of 
the  Book,  in  which  the  full  procedure  in  this  case 
is  given:  "Now  Boaz  went  up  to  the  gate,"  this 
being  the  place  of  public  meetings  and  the  seat  of 
the  council  of  elders  of  the  town,  "and  sat  down 
there,  and  behold  the  near  kinsman  (Hebrew:  Goel) 
of  whom  Boaz  spoke,  passed  by,  unto  whom  he  said, 
Ho,  such  an  one!  turn  aside;  sit  down  here;  and  he 
turned  aside  and  sat  down." 

Boaz  then  proceeded,  "and  took  ten  men  of  the 
elders  of  the  city  and  said.  Sit  ye  down  here;  and 


BOAZ    AND    RUTH.  I35 

they  sat  down."  The  ten  men  thus  selected  from 
among  the  elders  constituted  the  court  in  whose  pres- 
ence the  formalities  attending  the  redemption  of  the 
land  were  to  be  performed.  Their  duties  in  this  case 
were  very  simple.  They  were  merely  required  to 
attest  the  correctness  of  the  procedure.  It  is  inter- 
esting to  note  that  unto  this  very  day  among  the 
Jews  ten  men  constitute  a  quorum  in  religious  mat- 
ters; thus,  ten  men  are  a  congregation;  ten  men  are 
usually  required  to  attest  certain  juridico-religious 
acts,  such  as  marriage,  or  the  granting  of  a  bill  of 
divorce,  and  the  like. 

When  the  court  had  convened,  Boaz  arose,  "and 
he  said  to  the  Goel:  Naomi,  who  has  returned  from 
the  land  of  Moab  is  selling  a  parcel  of  land  which 
belonged  to  our  brother  Elimelech,  and  I  thought  to 
inform  thee  saying.  Buy  it  before  those  who  sit  here 
and  before  the  elders  of  my  people.  If  thou  wilt 
redeem  it,  redeem  it;  but  if  thou  wilt  not  redeem  it, 
then  tell  me,  that  I  may  know;  for  there  is  none  to 
redeem  it  beside  thee ;  and  I  am  after  thee.  And  he 
said,  I  will  redeem  it."      Then  Boaz  said,  "On  the 


136  LEADING    CASES    IN    THE    BIBLE. 

day  that  thou  buyest  the  field  from  the  hands  of 
Naomi,  from  Ruth  also,  the  Moabitess,  the  wife  of  the 
dead,  must  thou  buy  it,  to  raise  up  the  name  of  the 
dead  upon  his  inheritance;  and  the  Goel  said,  I  can- 
not redeem  it  for  myself,  lest  I  mar  my  own  inherit- 
ance; do  thou  take  my  right  of  redemption  on  thee, 
for  I  cannot  redeem  it." 

Although  the  land  is  spoken  of  here  as  though  it 
was  going  to  be  sold,  the  word  "sell"  does  not  truly 
express  the  nature  of  the  transaction.  It  was  a 
transfer  of  the  possession  of  the  land  to  the  kinsman, 
and  it  was  coupled  with  the  duty  of  marrying  the 
wife  of  the  dead.  By  a  legal  fiction  the  son  born  of 
this  marriage  continued  the  family  of  the  dead  and 
thus  "raised  up  the  name  of  the  dead  upon  his  in- 
heritance. ' ' 

When  Boaz  first  spoke  to  the  Goel  he  made  no 
mention  of  E-uth,  saying,  "Naomi  is  selling  the  parcel, 
of  land  which  was  our  brother  Elimelech 's. "  Now, 
it  was  known  to  the  Goel  that  Naomi,  the  wife  of 
Elimelech,  had  two  children,  Mahlon  and  Chilion, 
and,  therefore,  it  would  not  have  been  necessary  for 


BOAZ   AND   RUTH.  I37 

the  Goel  to  marry  her,  this  being  required  only  in  the 
ease  of  a  childless  widow;  hence  he  expressed  his 
willingness  to  redeem  or  acquire  the  land;  but  when 
Boaz  added  that  "on  the  day  that  thou  buyest  the 
field  from  the  hand  of  Naomi,  from  Ruth  the  Mo- 
abitess,  the  wife  of  the  dead,  thou  must  also  buy  it 
to  raise  up  the  name  of  the  dead  upon  his  inherit- 
ance," then  the  Goel  refused  to  exercise  his  right  of 
redemption;  he  evidently  did  not  want  to  marry 
Ruth.  It  was  Ruth,  the  widow  of  the  last  owner,' 
who  must  be  taken  along  with  the  land  by  the  nearest 
kinsman.  Naomi  was  mentioned  apparently  because 
she  was  known  as  the  wife  of  Elimelech,  whereas, 
Ruth,  who  had  been  married  to  Mahlon  in  Moab,  was 
not  commonly  known  as  his  wife ;  and  it  may  be,  that 
the  fact  that  Ruth  was  a  foreigner  had  something  to 
do  with  the  precedence  accorded  to  Naomi  on  this 
occasion.  There  is  no  doubt,  however,  that  although 
Ruth  was  a  Moabitess,  she,  by  her  action  and  by  her 
words  in  following  Naomi  to  Bethlehem,  in  adopting 
Naomi's  country,  her  God  and  her  domicile,  became, 
according  to   the   ideas   of  those   times,   thoroughly 


138  LEADING    CASES    IN    THE    BIBLE. 

naturalized;  whereas,  Orpali,  the  widow  of  Chilion, 
who  returned  to  her  mother's  house  in  Moab,  re- 
mained an  alien. 

The  question  may  be  asked :  If  the  land  was  Elime- 
lech's,  and  the  nearest  kinsman  had  to  marry  Euth, 
the  widow  of  Mahlon,  what  is  the  meaning  of  the 
phrase  "that  the  name  of  the  dead  may  be  raised 
upon  his  inheritance?"  Jewish  law  considered  the 
family,  and  not  the  individual,  as  the  unit.  As  long 
as  the  family  was  kept  up,  the  name  of  the  individual 
was  of  no  consequence,  so  that  the  child  of  Ruth  as 
fully  represented  Elimelech  as  it  did  Mahlon ;  and  in 
the  same  manner  it  represented  all  the  ancestors  of 
Elimelech,  and  was  simply  a  link  in  the  chain  of 
descent,  which  by  a  legal  fiction,  thus  became  un- 
broken. 

When  Ruth  had  a  son,  they  called  him  Obed.  It 
will  be  seen,  therefore,  that  the  name  was  of  no  im- 
portance, but  this  Obed,  although  he  was  the  son  of 
Boaz  and  Ruth,  was  considered  as  the  son  of  the  dead 
Mahlon  or  of  Elimelech  and  continued  the  line  of 
Elimelech,  although  he  had  none  of  the  blood.     This 


BOAZ   AND   RUTH.  139 

was  the  reason  the  neighbors  said,  ''there  is  a  son 
born  to  Naomi." 

When  the  Goel  refused  to  redeem  the  land  after 
he  discovered  that  he  would  have  to  marry  Ruth,  he 
excused  himself,  saying,  ' '  lest  I  mar  mine  own  inherit- 
ance. ' '  This  may  be  taken  to  mean  that  other  prop- 
erty which  he  owned  would  have  to  bear  the  burden 
of  improvement  and  maintenance  of  the  particular 
piece  of  land  that  came  to  him  through  this  marriage, 
because  it  had  to  be  preserved  for  his  son,  who  would, 
in  the  eye  of  the  law,  be  the  son  of  the  dead  Mahlon ; 
nor  would  this  estate  of  inheritance  descend  to  any 
other  children  that  he  might  have,  but  was  entailed 
upon  the  heirs  of  the  body  of  Ruth. 

The  record  then  goes  on  to  say,  "Now  this  was  the  [ 
custom  in  former  time  in  Israel  concerning  redeem-  '■■^ 
ing  and  concerning  changing,  to  confirm  all  things; 
a  man  drew  off  his  shoe  and  gave  it  to  his  neighbor, 
and  this  was  a  testimony  in  Israel;  so  the  Goel  said 
to  Boaz,  Buy  it  for  thyself,  and  he  drew  off  his 
shoe."  The  shoe  was  the  symbol  of  possession,  and 
the  foot  planted  upon  the  ground  was  the  evidence 


140  LEADING    CASES    IN    THE    BIBLE. 

of  ownership;  thus  the  shoe  or  sandal  became  the 
symbol  of  ownership  and  title,  and  the  handing  of 
the  shoe  from  one  to  the  other  was  evidence  of  a 
transfer  of  a  right  or  title.  In  this  case,  the  Goel 
who  renounced  his  right  to  redeem  in  favor  of  Boaz, 
the  next  in  succession,  handed  the  latter  his  shoe  as 
evidence  of  his  transfer  of  the  right  of  redemption. 
Boaz,  having  obtained  the  right  of  redemption 
through  the  renunciation  of  the  nearest  kinsman, 
made  a  public  statement  in  the  presence  of  the  elders 
summarizing  his  rights,  such  a  statement  being  neces- 
sary in  the  absence  of  written  records  of  the  trans- 
action; "And  Boaz  said  unto  the  elders  and  unto  all 
the  people,  Ye  are  witnesses  this  day  that  I  have 
bought  all  that  was  Elimelech's,  and  all  that  was 
Chilion's  and  Mahlon's  from  the  hand  of  Naomi." 
There  could  be  no  doubt  as  to  his  title,  and  the  fact 
that  it  was  the  family  estate  rather  than  the  estate 
of  the  individual  that  was  now  being  transferred  is 
indicated  by  the  mentioning  of  the  names  of  the 
father  and  the  sons.  There  was  something  in  the 
Jewish  idea  of  the  family  estate  as  distinguished  from 


BOAZ   AND   RUTH.  141 

the  rights  of  its  possessor,  akin  to  the  modern  notion 
of  the  relation  of  a  corporation  to  its  members.  The 
family  estate  was  an  entity  separate  and  apart  from 
the  line  of  individuals  who  succeeded  each  other  in 
its  possession.  Like  the  corporation,  the  family  es- 
tate did  not  die,  and  to  prevent  the  possibility  of 
the  extinction  of  the  family,  a  legal  fiction  was  called 
into  requisition,  as  in  this  case,  whereby  the  son  of 
the  widow  of  the  last  occupant  of  the  estate  was 
looked  upon  as  though  he  were  of  the  blood  of  the 
last  occupant;  thus  the  owner  of  the  land,  for  the 
time  being,  was  merely  the  legal  representative  of 
the  estate  which  would  continue  after  his  death. 

We  might,  to  carry  still  further  the  analogy  be- 
tween the  Jewish  notion  of  the  estate  and  the  modern 
corporation,  consider  the  owner  of  the  estate  like 
the  president  of  the  corporation— its  representative 
clothed  with  certain  powers  over  it,  but  unable  prac- 
tically to  do  anything  whereby  the  estate  would  be 
minimized  or  lost  to  the  family. 

Boaz  went  on  addressing  the  elders  as  follows: 
"Moreover,  Ruth  the  Moabitess,  the  wife  of  Mahlon, 


142  LEADING    CASES    IN   THE    BIBLE. 

I  have  purchased  to  be  my  wife,  to  raise  up  the  name 
of  the  dead  upon  his  inheritance,  that  the  name  of 
the  dead  be  not  cut  off  from  among  his  brethren  and 
from  the  gate  of  his  place.  Ye  are  witnesses  this 
day ;  and  all  the  people  that  were  in  the  gate  and  the 
elders  said,  We  are  witnesses." 

Now,  this  was  a  lawful  marriage,  and  required  no 
further  ceremony.  The  wife  went  with  the  estate, 
and  indeed,  in  a  measure,  transmitted  the  estate 
because  her  son  would  inherit  it;  her  son  would  rep- 
resent her  former  husband's  family,  and  would  take 
his  place  as  one  of  the  heads  of  the  families  of  the 
town  "in  the  gate  of  his  place." 

The  right  and  duty  of  the  nearest  kinsman  to 
marry  the  widow  and  raise  up  the  name  of  the  dead 
upon  his  inheritance  was,  in  later  times,  limited,  and 
only  the  actual  brother  of  the  dead  man  was  ob- 
liged to  marry  the  widow.  Contemporaneously  with 
this  change,  came  a  change  in  the  custom  of  draw- 
ing off  the  shoe  as  evidence  of  title  and  ownership. 
As  stated  in  this  record,  "This  was  the  custom 
in  former  times  in  Israel,"  but  in  later  times,  the 


BOAZ    AND    RUTH.  143 

custom  of  drawing  off  the  shoe  was  limited  exclu- 
sively to  the  one  case  mentioned  in  the  twenty-fifth 
chapter  of  Deuteronomy;  namely,  where  the  brother 
of  the  dead  man  refuses  to  marry  the  widow,  she 
plucks  off  his  shoe  in  the  presence  of  the  elders,  spits 
out  before  him  and  says,  "Thus  shall  be  done  to  the 
man  who  wall  not  build  up  his  brother's  house;  and 
his  name  was  known  in  Israel  as  the  house  of  him 
whose  shoe  was  plucked  off."  Thus  what  was  orig- 
inally a  general  symbol  of  title,  in  the  course  of  time 
was  modified,  and  eventually  lost  its  significance  as 
such  altogether,  and  became  a  symbol  of  contempt; 
and  that  which  was  originally  a  general  custom  used 
in  all  cases,  came  in  the  course  of  time  to  be  limited 
to  a  single  case  in  which  the  actors  changed  places. 
It  was  no  longer  he  who  transferred  the  title  that 
plucked  off  his  shoe  and  gave  it  to  his  neighbor,  but 
it  was  the  rejected  woman  who,  in  token  of  her  con- 
tempt for  the  man  who  refused  to  marry  her,  plucked 
off  his  shoe.  In  the  case  of  Boaz  and  Ruth  we  find 
the  custom  of  plucking  off  the  shoe  in  its  ancient 
primitive  form,  and  in  the  other  case,  in  Deuter.on- 


144  LEADING    CASES    IN    THE    BIBLE. 

omy,  it  has  become  modified  and  changed  in  the 
course  of  centuries,  until  hardly  recognizable  as  the 
same  custom.  It  is  an  interesting  illustration  of  the 
manner  in  which  customs  are  changed  in  the  course 
of  long  periods  of  time ;  it  is  only  when  we  compare 
the  two  extremes  that  we  notice  the  remarkable 
changes  that  have  taken  place. 


THE   CASE   OF  ADONIJAH,  ABIATHAR  AND 
JOAB. 

1  Kings  1,  5 -II,  34. 

Several  times  during  the  beginning  of  the  reign 
of  King  Solomon  the  question  of  the  privilege  of 
sanctuary  came  up  for  decision.  This  privilege  or 
right  was  successively  claimed  by  Adonijah,  the 
king's  brother;  Abiathar,  the  high  priest,  and  Joab, 
one  of  the  mighty  men  of  King  David,  and  sometime 
commander-in-chief  of  the  army.  The  right  of  sanc- 
tuary claimed  by  these  men  is  one  of  the  most  ancient 
legal  institutions  recorded  in  the  Bible.  It  arose 
with  the  very  beginning  of  a  belief  in  supernatural 
powers,  to  whom  it  was  a  direct  appeal  for  protection. 
Every  place  that  had  been  consecrated  by  the  sup- 
posed presence  of  God,  or  that  had  been  used  as  a 
place  of  worship,  was  sacro-sanct;  and  violence  com- 
mitted in  it  was  not  merely  an  offence  against  the 
person  injured  or  against  established  law  or  custom, 
but  was  likewise  an  insult  to  the  Deity.  Hence,  in 
10  145 


146  LEADING    CASES    IN    THE    BIBLE. 

very  earliest  times,  the  sacred  places  became  places 
of  refuge  for  those  who  were  pursued  and  in  danger 
of  their  lives;  and  so  great  was  the  reverence  and 
fear  inspired  by  the  supernatural,  that  this  appeal 
for  Divine  protection  was  regarded  as  tantamount 
to  obtaining  that  protection,  and  kept  the  avenging 
pursuer  at  a  distance. 

It  appears  that  when  King  David  had  grown  old 
and  was  about  to  die,  one  of  his  sons,  Adonijah,  ap- 
parently with  the  consent  of  the  king,  "exalted  him- 
self, saying,  I  will  reign,"  and  he  appeared  before 
the  people  with  chariots  and  horsemen,  and  generally 
conducted  himself  not  merely  as  heir-apparent,  but 
as  though  he  were  already  king.  He  conferred  with 
Joab,  the  king's  commander-in-chief,  and  Abiathar, 
the  high  priest,  both  of  them  devoted  to  King  David, 
and  they  "following  Adonijah,  helped  him"  (1  Kings 
I,  5,  etc.).  By  a  palace  intrigue,  Bath-Sheba,  as- 
sisted by  Nathan,  the  prophet,  managed  to  obtain  the 
old  king's  favor  for  her  son  Solomon,  and  under  their 
influence  King  David  directed  that  Solomon  should 
be  anointed  and  proclaimed  king  over  Israel  (1 
Kings  I,  32-34). 


ADONIJAH,  ABIATHAR    AND    JOAB.  I47 

AVhen  Adonijali,  who  had  been  entertaining  the 
princes  and  the  king's  officers,  heard  that  the  crown 
had  been  given  to  Solomon  he  feared  that  Solomon 
would  put  him  to  death,  the  favorite  method  em- 
ployed by  oriental  potentates  for  disposing  of  dan- 
gerous rivals,  especially  members  of  their  own  family, 
who  by  virtue  of  their  blood  relationship  might  pre- 
tend to  a  right  to  the  throne,  Adonijah  sought  refuge 
in  the  tent  of  the  tabernacle  where  the  Ark  of  the 
Covenant  was  resting  and  where  the  altar  of  God 
stood,  and  laying  hold  of  the  horns  of  the  altar,  he 
announced  that  he  would  not  leave  the  place  until 
Solomon  swore  that  he  would  not  put  him  to  death. 
Although  Solomon  respected  this  appeal  to  the  privi- 
lege of  the  sanctuary,  he  declined  to  comply  entirely 
with  Adonijah 's  request,  merely  saying,  "If  he  will 
show  himself  a  worthy  man,  there  shall  not  a  hair  of 
him  fall  to  the  earth ;  but  if  wickedness  shall  be  found 
in  him,  he  shall  die."  Adonijah  understood  this  to 
mean  that  if  Solomon  came  to  the  conclusion  that 
Adonijah  was  a  dangerous  man,  he  would  put  him  to 
death,  and  he  refused  to  leave  the  sacred  premises. 


148  LEADING    CASES    IN    THE    BIBLE. 

Solomon  then  sent  for  him  and  "they  brought  him 
down  from  the  altar"  (1  Kings  I,  50-53)— removed 
him  by  force. 

Thereafter,  King  David  died  and  Solomon  sat  on 
the  throne  of  his  father.  After  the  death  of  the  old 
king,  Adonijah  was  guilty  of  a  diplomatic  blunder 
that  cost  him  his  life.  In  an  interview  with  Bath- 
Sheba,  the  mother  of  King  Solomon,  he  obtained  from 
her  a  promise  to  ask  the  king  to  give  him  as  wife 
Abishag,  the  Shunammite  girl,  who  had  waited  upon 
King  David  during  his  last  days.  Had  Solomon  com- 
plied with  this  request,  the  people  w^ould  have  seen 
in  this  marriage  a  confirmation  of  the  claims  of 
Adonijah  to  succeed  King  David.  It  was  customary 
for  the  successor  of  a  deceased  king,  as  evidence 
inter  alia  of  his  right  to  succeed  to  the  sovereignty, 
to  take  possession  of  the  harem. 

Solomon  immediately  saw  the  political  bearing  of 
this  request,  and  he  said  to  his  mother,  "And  why 
dost  thou  ask  Abishag  the  Shunammite  for  Adonijah  1 
Ask  for  him  the  kingdom  also,  for  he  is  mine  elder 
brother"  (1  Kings  II,  22) ;  whereupon  Solomon  had 


ADONIJAII,  ABIATHAR    AND    JOAB.  149 

Adonijah  put  to  death  on  the  same  day,  and  fearing 
the  power  of  Abiathar  and  Joab,  who  had  encouraged 
Adonijah  in  his  pretensions,  he  determined  to  rid 
himself  of  them  also.  The  priest  he  could  not  kill, 
since  the  fact  that  he  ministered  at  the  altar  and  bore 
the  Ark  of  the  Lord  on  his  shoulder  invested  his  very- 
person  with  a  certain  sacredness  which  the  king  felt 
bound  to  respect.  Abiathar,  therefore,  was  banished 
from  the  court  and  the  capitol  (1  Kings  II,  26-27). 
Then  came  Joab's  turn.  When  Joab  heard  of 
these  occurrences,  he  fled  into  the  tabernacle  of  the 
Lord,  and  caught  hold  of  the  horns  of  the  altar.  But 
Solomon's  fear  of  Joab's  influence  over  the  army- 
overcame  his  fear  of  the  Lord,  and  he  gave  orders  to 
have  Joab  killed  even  at  the  altar.  The  situation  is 
almost  paralleled  by  the  story  of  Henry  II  of  Eng- 
land and  Thomas  A'Becket.  The  king's  officer,  who 
had  gone  down  to  the  tabernacle  to  execute  the  com- 
mands of  his  royal  master,  was  afraid  to  do  as  the 
king  commanded,  because  of  the  sacrilege  involved, 
and  he  therefore  sought  to  induce  Joab  to  come  forth, 
but   Joab    said    to   him,    "Nay,    I    will    die   here." 


150  LEADING    CASES    IN    THE    BIBLE. 

Rather  than  kill  Joab  by  the  side  of  the  altar,  the 
officer  returned  to  the  king  and  reported  what  had 
oecurxed,  and  the  king,  feeling  that  it  was  not  only 
necessary  that  he  should  justify  himself,  but  also 
satisfy  the  scruples  of  his  officers,  gave  reasons  for 
his  command.  The  true  reason  was  the  political  one 
of  Joab's  participation  in  Adonijah's  usurpation,  a 
reason  not  strong  enough,  however,  to  destroy  Joab's 
right  of  sanctuary.  After  the  king's  officer  had  re- 
ported to  him  that  Joab  had  said  "I  will  die  here," 
the  king  said  unto  him,  "Do  as  he  hath  said  and  put 
him  to  death  and  bury  him,  that  thou  mayest  take 
away  the  innocent  blood  which  Joab  shed,  from  me 
and  from  the  house  of  my  father.  And  the  Lord 
shall  return  his  blood  upon  his  own  head,  who  fell 
upon  two  men  more  righteous  and  better  than  he, 
and  slew  them  with  a  sword,  my  father  David  not 
knowing  thereof,  Abner,  the  son  of  Ner,  captain  of 
the  host  of  Israel,  and  Amasa,  the  son  of  Jether, 
captain  of  the  host  of  Judah.  Their  blood  shall 
therefore  return  upon  the  head  of  Joab  and  upon  the 
head  of  his  seed  forever;  but  upon  David  and  his 


ADONIJAH,  ABIATHAR   AND    JOAB.  151 

seed  and  upon  his  house,  and  upon  his  throne,  shall 
there  be  peace  forever  from  the  Lord."  (1  Kings 
II,  31-33.) 

By  this  piece  of  hypocrisy  the  king  sought  to 
justify  his  command  to  kill  Joab  and  to  disregard 
the  right  of  sanctuary,  for  it  was  the  law  that  this 
privilege  of  sanctuary  could  not  be  claimed  by  a  will- 
ful murderer.  This  explanation  satisfied  the  king's 
officer,  and  he  thereupon  returned  to  the  tabernacle 
and  killed  Joab  by  the  altar.  Solomon  was  a  despot, 
and  it  was  not  at  all  necessary  for  him  to  give  reasons 
for  his  commands  to  his  subordinates ;  but  the  terrible 
nature  of  the  command,  which  was  apparently  a  defi- 
ance of  God  and  a  violation  of  his  sanctuary,  required 
some  justification. 

The  sanctity  of  the  altar  or  the  temple,  or  any 
other  sacred  place,  is  historically  connected  with  the 
sacredness  of  guest-friendship.  Anciently  every 
man's  house  was  a  temple,  the  threshold  of  which 
was  a  sacred  place  at  which  the  family  gods  were 
worshipped,  and  the  family  sacrifices  made;  and  the 
head  of  every  family  was  a  priest.      Persons  who 


152  LEADING    CASES    IN    THE    BIBLE. 

crossed  the  threshold  became,  for  the  time  being, 
members  of  the  family,  and  were  entitled  to  all  its 
rights  and  privileges.  It  was  the  sacred  duty  of 
every  member  of  the  family  to  defend  and  protect 
every  other  one.  The  stranger  who  crossed  the 
threshold,  by  a  legal  fiction  having  become  invested 
with  the  family  rights,  had  to  be  protected  by  the 
members  of  the  family  against  any  persons  pursuing 
him.  Thus,  Lot  protected  two  men  who  had  come 
into  his  house  and  had  partaken  of  his  hospitality; 
and  he  even  permitted  his  house  to  be  besieged  by 
the  men  of  Sodom  rather  than  give  up  the  strangers 
to  their  vengeance  (Genesis  XIX,  4^11).  Similarly 
the  citizen  of  Gibeah  protected  the  two  strangers 
from  his  townsmen,  because  he  had  lodged  and  fed 
them  in  his  house  (Judges  XIX,  22-23).  Rahab 
protected  the  two  spies  sent  out  by  Joshua  to  the 
city  of  Jericho.  When  the  king  of  Jericho  heard 
that  these  men  were  lodged  at  her  house,  he  directed 
her  to  produce  them;  but  she  concealed  them  in  her 
house  and  gave  them  the  protection  that  guest-friend- 
ship required  (Joshua  II,  1-7). 


ADONIJAH,  ABIATHAR   AND    JOAB.  153 

When,  in  the  course  of  time,  the  union  of  various 
patriarchal  families  resulted  in  the  formation  of 
tribal  organization,  and  in  addition  to  the  sacred 
thresholds  and  altars  of  every  man's  house,  public 
places  of  worship  were  recognized,  the  same  sacred 
character  was  conferred  upon  them.  The  man  who 
took  refuge  in  the  house  of  God,  which  was  really 
the  tribal  house,  was,  in  the  eye  of  the  law,  invested 
with  certain  rights  which  it  was  the  duty  of  the 
entire  tribe  to  guard.  Hence,  merely  crossing  the 
threshold  of  sacred  places,  and  especially,  standing 
by  the  side  of  the  sacred  altar  or  laying  hold  of  the 
horns  of  the  altar  was  sufficient  to  insure  immunity, 
even  though  there  were  no  physical  barriers  to  pre- 
vent the  seizure  and  punishment  of  the  suppliant  at 
the  sanctuary.  But  the  peace  of  the  community  was 
threatened  by  the  privileges  thus  claimed  and  al- 
lowed, inasmuch  as  any  man  might  commit  a  murder, 
safe  in  the  assurance  that  he  would  be  protected 
merely  by  taking  refuge  in  some  sacred  place. 
Hence,  we  find  in  the  oldest  collection  of  laws  in 
the  Bible  this  proviso:    "He  that  smiteth  a  man  so 


154  LEADING    CASES    IN    THE    BIBLE. 

that  he  die,  shall  be  surely  put  to  death;  and  if  a 
man  lie  not  in  wait,  but  God  deliver  him  into  his 
hand,  then  he  will  appoint  a  place  whither  he  shall 
flee;  but  if  a  man  come  presumptuously  upon  his 
neighbor  to  slay  him  with  guile,  thou  shalt  take  him 
from  mine  altar  that  he  may  die"  (Exodus  XXI, 
12-14).  Thus  the  willfvil  murderer  was  deprived  of 
the  benefit  of  sanctuary,  and  it  was  limited  to  protect 
the  man-slayer  from  the  hand  of  the  avenging  kins- 
man only  if  the  murder  was  not  committed  "pre- 
sumptuously or  by  lying  in  wait."  In  other  words, 
no  immunity  was  granted  to  him  who  had  been  guilty 
of  "murder  in  the  first  degree." 

The  Cities  of  Refuge  were  simply  an  extension  of 
the  right  of  sanctuary,  from  a  specific  sacred  place  to 
an  entire  city.  The  sacred  character  of  these  cities 
is  indicated  by  the  fact  that  they  were  Levitical  cities. 
The  notion  of  the  inviolability  of  the  refugee,  as  soon 
as  he  crossed  the  boundary  of  the  city  and  entered 
its  gate,  is  an  extension  of  the  old  notion  of  the 
sacredness  of  the  threshold  and  the  duties  of  guest- 
friendship  to  the  stranger  who  passed  over  it. 


ADONIJAH,  ABIATHAR    AND    JUAB.  155 

The  reason  for  Solomon's  action  in  the  case  of 
Adonijah,  Abiathar  and  Joab  can  readily  be  distin- 
guished. The  only  legal  justification  for  his  refusal 
to  recognize  the  right  of  sanctuary  is  given  in  Joab's 
case;  to  wit,  the  charge  that  Joab  had  been  guilty  of 
willful  murder,  and  therefore  had  deprived  himself 
of  the  right  of  sanctuary.  In  Adonijah 's  case,  Solo- 
mon was  obliged  to  make  him  a  promise  of  partial 
immunity,  but  this  promise  is  couched  in  such  terms 
that  shortly  thereafter  the  king  was  enabled  to  use 
Adonijah 's  diplomatic  folly  as  a  pretext  for  putting 
him  to  death.  In  Abiathar 's  case,  the  sacredness  of 
the  office  of  high  priest  amply  protected  him  from 
the  king's  vengeance,  and  Solomon  was  obliged  to 
content  himself  with  the  deposition  of  Abiathar  from 
his  high  office,  and  his  exile  to  his  patrimonial  estate. 

The  juridical  or  legal  character  of  the  sanctuary 
is  attested  by  many  biblical  citations.  The  ark  of 
testimony  containing  the  tables  of  the  law  was  kept 
in  the  sanctuary  (Exodus  XXXIX,  35),  and  was 
placed  in  charge  of  the  priests  (Deuteronomy  XXXI, 
9).      It  was  to  the  altar  that  men  went  for  the  pur- 


156  LEADING    CASES    IN    THE    BIBLE. 

pose  of  having  an  oath  administered  to  them  (2 
Chronicles  VI,  22).  So  closely  connected  were  the 
notions  of  sanctuary  and  administration  of  justice 
that  the  judges  were  known  as  Elohim  [Hebrew: 
God],  and  a  case,  therefore,  was  said  to  go  before 
Elohim— that  is  to  say,  before  the  judges  who  repre- 
sented God  and  who  spoke  judgment  in  his  name. 

At  Common  Law  in  England,  the  privilege  of  sanc- 
tuary survived  until  it  was  abolished  by  the  statute, 
21st  James  I,  chapter  twenty-eight,  paragraph  seven. 
It  may  be  that  the  exemption  from  civil  arrest  enjoyed 
in  our  own  times  by  parties,  witnesses,  attorneys, 
judges,  jurors  and  officers  of  the  court,  while  attend- 
ing court,  and  while  going  to  and  returning  from 
court,  is  a  survival  of  the  right  of  sanctuary,  though 
a  different  reason  is  now  given  for  it. 


THE    JUDGMENT    OF    SOLOMON. 

1  Kings  III,  16-28. 

The  wisdom  of  Solomon  is  the  theme  of  writers  of 
the  three  great  religions  which  sprung  from  Judea. 
In  legend  and  story  he  has  been  extolled  as  the  wisest 
of  men,  whose  insight  into  the  mysteries  of  life 
transcended  that  of  all  other  men ;  whose  great  prac- 
tical sagacity  made  him  the  wonder  of  the  world.  Of 
the  many  stories  concerning  his  wisdom  there  is  one 
recorded  in  the  Bible,  which  may  or  may  not  have 
had  a  foundation  in  some  actual  occurrence,  but 
which  in  its  recorded  form  must  certainly  be  classed 
with  the  legends.  It  presents  Solomon,  in  the  exer- 
cise of  his  judicial  function,  as  an  oriental  potentate, 
dispensing  justice  to  all  comers,  in  the  great  Hall  of 
Justice.  The  narrative  is  the  record  of  the  decision 
of  an  Eastern  judge,  whose  judgment  was  rendered 
after  the  peculiar  manner  of  primitive  tribunals, 
which  have  not  as  yet  established  a  system  of  law, 
but  which  depend  upon  the  inspiration  of  the  mo- 

157 


158  LEADING    CASES    IN    THE    BIBLE. 

ment.  Under  the  law,  as  codified  in  the  Pentateuch, 
such  a  proceeding  would  have  been  impossible,  but 
to  the  irresponsible  king  all  things  are  possible;  his 
will  is  the  law,  and  his  sense  of  justice  is  his  people's 
jurisprudence.  In  the  biblical  story  of  Solomon's 
judgment  the  legendary  elements  are  intertwined 
with  many  interesting  suggestions  of  the  procedure 
in  such  royal  oriental  courts  of  law,  and  it  is  curious 
to  note  that  many  of  the  points  of  procedure  that 
may  be  found  stated  either  expressly  or  by  inference 
in  the  account  of  the  judgment  of  Solomon,  find 
confirmation  in  the  opinions  of  the  Talmudists. 

The  king  was  seated  on  the  judgment  seat  in  his 
great  hall,  when  two  women  that  were  harlots  entered 
and  stood  before  him.  "The  one  woman  said.  Oh, 
my  lord,  I  and  this  woman  dwell  in  one  house  and 
I  gave  birth  to  a  child  with  her  in  the  house,  and  on 
the  third  day  that  I  was  delivered  this  woman  was 
delivered  also,  and  we  were  together,  no  stranger  was 
with  us  in  the  house,  save  we  two  alone.  And  the 
child  of  this  woman  died  in  the  night  for  she  over- 
laid it,  and  she  arose  at  midnight  and  took  my  child 


JUDGMENT    OF    SOLOMON.  I59 

from  me  and  she  laid  it  in  her  bosom,  and  her  child, 
the  dead  one,  she  laid  in  my  bosom.  And  when  I 
arose  in  the  morning  to  give  suck  to  my  child,  behold, 
he  was  dead,  but  when  I  had  considered  it  in  the 
morning,  behold,  it  was  not  my  son  which  I  did 
bear. ' ' 

Then  said  the  other  woman,  "Nay,  for  my  son  is 
the  living  one  and  thy  son  is  the  dead."  And  this 
one  said,  "Nay,  for  thy  son  is  the  dead  one  and  my 
son  is  the  living. ' '     Thus  they  spoke  before  the  king. 

Upon  this  state  of  facts  the  king  was  asked  to 
render  judgment — a  test  worthy  of  his  wisdom. 
Here  was  the  statement  of  one  against  the  statement 
of  the  other,  no  witnesses  being  produced  by  either 
side,  no  husband,  friend  or  relative  to  add  to  the 
weight  of  the  testimony  of  either  of  the  parties. 
The  legend  states  the  fact  in  such  a  manner  as  to  pre- 
clude any  judgment  based  upon  ordinary  methods 
of  investigation,  and  requiring  the  exercise  of  extra- 
ordinary sagacity  to  discover  the  truth.  It  may  be, 
that  by  cross-examination  Solomon  might  have  con- 
founded the  liar  and  brought  out  the  truth,  and  it 


160  LEADING    CASES    IN    THE    BIBLE. 

may  be  presumed  that  lie  was  a  cr.oss-exammer  par 
excellence,  but  this  method  would  not  have  satisfied 
the  exigencies  of  the  legend.  What  would  have  de- 
lighted a  lawyer  would  have  bored  a  layman  and 
legends  do  not  spring  up  among  lawyers.  The  pop- 
ular imagination  does  not  follow  the  intricacies  of 
close  reasoning,  nor  has  it  the  patience  to  unravel 
painfully  the  thread  of  a  fine  spun  argument.  It 
delights  in  swift  and  sudden  changes  of  situation 
and  in  a  sensational  cutting  of  the  Gordian  knot. 
In  the  popular  mind,  the  great  judge  is  he  whose 
methods  are  direct,  swift  and  striking. 

The  king  having  heard  the  statements  of  the 
women,  fell  a  thinking  about  the  case  and  repeated 
their  words.  This  one  says,  ''My  son  is  the  living 
and  thy  son  the  dead";  and  that  one  says,  "Nay, 
thy  son  is  the  dead  and  mine  the  living."  Some 
Bible  commentators  find  the  clue  to  the  judgment  in 
the  manner  in  which  the  women  made  these  state- 
ments. The  false  woman,  whose  object  was  to  retain 
possession  of  the  living  child,  shows  it  in  her  eager- 
ness to  claim  him,  saying,  ''Mine  is  the  living  and 


JUDGMENT   OF    SOLOMON.  161 

thine  the  dead."  It  is  the  living  child,  the  one  she 
has  in  her  possession,  that  she  emphatically  names 
first,  whereas  the  true  mother,  Avho  has  the  dead  child 
thrust  on  her,  says,  "Nay,  thine  is  the  dead  child 
and  mine  is  the  living."  She  desires  to  be  rid  of 
the  dead  child  and  regain  possession  of  her  own 
child.  The  value  of  this  suggestion  is  left  to  psy- 
chologists; it  could  hardly  have  been  the  means  of 
giving  light  in  so  difficult  a  case.  But  whether  this 
was  the  clue  or  not,  the  king,  after  having  repeated 
these  words  of  the  women,  suddenly  cried  out,  ' '  Fetch 
me  a  sword." 

His  repetition  of  the  pleas  before  proceeding  to 
judgment  is  approved  by  the  Talmudists,  who  made 
it  a  rule  that  the  judge,  before  rendering  judgment, 
must  publicly  state  the  case  of  both  sides,  very  much 
in  the  manner  in  which  a  judge  sums  up  to  the  jury. 
On  the  other  hand,  his  fibrupt  call  for  a  sword  is 
severely  condemned  by  some  Talmudists  as  an  act 
unworthy  of  a  judge,  who  sought  by  illegal  means  to 
frighten  the  parties  and  who,  had  his  sentence  of 
judgment  been  carried  out,  might  have  caused  the 


162  LEADING    CASES    IN    THE    BIBLE. 

death  of  an  innocent  child.  It  must  be  remembered 
that  the  Talmudists  who  lived  under  a  highly  devel- 
oped system  of  jurisprudence,  which  compelled  judges 
to  follow  an  orderly  and  well  regulated  system  of 
procedure,  could  not  countenance  the  capricious 
methods  of  an  irresponsible  judge,  even  though  he 
were  the  king.  Hence  Rabbi  Judah,  a  great  master 
of  the  law,  and  the  compiler  of  the  great  code  known 
as  the  Mishnah,  said,  "If  I  had  been  present  when 
he  said,  'Fetch  me  a  sword,'  I  would  have  put  a  rope 
around  his  neck,  for  if  God  had  not  been  merciful 
and  prompted  the  mother  to  give  up  her  child  rather 
than  see  it  die,  it  would  surely  have  been  killed  by 
him."  Evidently  the  ancient  methods  of  procedure 
found  little  favor  in  the  eyes  of  Eabbi  Judah.  In 
fact  the  Talmudists  were  rather  impatient  of  the 
primitive  methods  of  the  biblical  law,  even  of  the  law 
of  Moses,  and  they  sought  under  the  influence  of  more 
refined  theories  of  law  and  procedure  to  modify  the 
severity  of  the  ancient  Mosaic  law,  even  going  so  far 
as  to  abrogate  it  entirely  when  it  was  found  to  be  out 
of  harmony  with  the  conditions  and  requirements  of 
a  later  stage  of  civilization. 


JUDGMENT    OF    SOLOMON.  163 

When  the  king  cried  out  "Fetch  me  a  sword,"  he 
was  probably  eyeing  the  two  women  and  noting  the 
effect  of  his  order.  At  this  point,  one  might  suppose 
that  the  false  woman  would  have  shown  signs  of 
terror  and  could  easily,  by  a  question  or  two,  have 
been  made  to  confess  her  fault.  But,  no,  the  legend 
is  not  satisfied  with  such  proof  of  Solomon's  wisdom; 
as  yet  there  is  no  climax  to  the  wrought  up  feelings 
of  the  popular  mind.  And  now  comes  the  climax  in 
all  its  magnificence.  Imagine  the  Eastern  profes- 
sional story  teller  telling  this  tale  and  gradually  work- 
ing up  to  the  words,  "Cut  the  living  child  in  two, 
and  give  one-half  to  the  one,  and  one-half  to  the 
other."  The  death  of  the  child  is  to  be  the  touch- 
stone by  which  to  discover  the  mother.  Josephus,  in 
his  account  of  this  scene,  makes  the  king  order  both 
the  living  and  dead  child  to  be  divided,  so  that  abso- 
lute equity  shall  be  observed  in  the  division.  The 
story  would  have  had  a  sad  ending  if  the  mother  had 
fainted  when  the  sword  was  produced,  and  the  sen- 
tence had  been  carried  out.  However,  the  story  teller 
will  not  leave  us  in  the  lurch.      It  is  his  purpose  to 


164  LEADING    CASES    IN    THE    BIBLE. 

show  that  Solomon  was  wise,  and  he  may  be  safely- 
trusted  to  get  over  the  difficult  places. 

The  king's  threat  had  the  desired  effect,  for  the 
mother  of  the  living  child  cried  out,  "Oh  my  lord, 
give  her  the  living  child  and  do  not  kill  it,"  but  the 
other  woman  said,  ' '  Let  it  be  neither  mine  nor  thine ; 
divide  it."  Now  what  possessed  the  woman  to  make 
such  a  statement?  What  reason  was  there  for  her 
demand  that  the  child  should  be  killed.  How  lame 
and  impotent  a  conclusion  to  her  case,  which,  up  to 
this  time,  she  had  conducted  with  so  much  pertinacity, 
boldness  and  skill.  She  had  stolen  the  living  child 
from  its  mother,  presumably  because  she  wanted  it; 
she  had  resisted  the  mother's  demands  for  it,  pre- 
sumably because  she  wanted  to  keep  it;  she  ha'd  even 
compelled  the  mother  to  go  before  the  king  himself 
to  get  her  child,  and  there  in  the  royal  presence  she 
had  thus  far,  under  great  stress,  maintained  her  right 
of  possession,  and  now  at  the  very  moment  of  her 
triumph,  when  the  mother  publicly  relinquished  her 
rights  and  acquiesced  in  her  possession,  she  not  only 
declines  to  take  it,  but  insists  upon  its  destruction. 


JUDGMENT   OF    SOLOMON.  1(55 

What  can  be  the  reason  for  such  unreasonableness? 
Let  us  suppose  that  after  the  mother  had  said, 
"Give  her  the  living  child  but  do  not  kill  it,"  the 
false  woman  had  said  nothing.  Solomon  would  have 
been  compelled  to  give  the  child  to  the  wrong  woman 
and  a  good  story  would  have  been  spoiled,  because 
there  would  have  been  no  way  of  determining  whether 
the  true  mother  or  the  false  claimant  was  the  one  who 
said,  "Give  her  the  living  child  but  do  not  kill  it." 
This  might  as  well  have  been  said  by  the  mother  who 
was  in  terror  lest  her  child  be  killed,  as  by  the  false 
woman  who  was  seized  with  remorse  at  the  last  mo- 
ment and  prayed  that  the  child  might  not  be  killed. 
Now  the  reason  for  the  remarkable  statement  of  the 
false  woman  appears.  The  legend  had  to  add  these 
words  in  order  to  make  it  clear  to  the  popular  mind 
that  the  woman  who  wanted  to  save  the  child  was 
indeed  the  true  mother,  by  contrasting  with  her  words 
those  of  the  false  woman  who  was  thus  made  base  even 
to  fiendishness.  And  thus  the  famous  words  of  Solo- 
mon, "Fetch  me  a  sword,"  are  justified  and  virtue 
is  triumphant,  for  the  king  said,  ' '  Give  her  the  living 
child,  and  do  not  kill  it;  she  is  its  mother." 


166  LEADING    CASES    IN    THE    BIBLE. 

The  judgment  of  Solomon  may  be  based  on  fact, 
but  it  is  presented  in  the  form  of  a  legend  such  as 
the  people  love  to  tell  about  their  great  men.  Here 
the  king  sits  in  all  the  pomp  and  glory  of  royalty, 
exercising  the  most  important  office,  that  of  the  judge, 
and  doing  justice,  not  according  to  the  methods  of 
the  tiresome  lawyers,  who  talk  and  reason  and  quib- 
ble, and  whom  the  popular  mind  has  at  all  times 
condemned,  but  in  the  manner  of  the  noble  prince, 
with  royal  dignity,  with  worldly  wisdom  and  with 
swift  hand. 


THE    CASE    OF   NABOTH'S   VINEYARD. 
1  Kings  XXI,  1-29;  2  Kings  IX,  22-26. 

This  case  has  been  made  famous  on  account  of  the 
magnificent  dramatic  effect  with  which  it  is  told  in 
the  Bible,  and  more  especially  because  of  the  manner 
in  which  the  Divine  wrath  took  vengeance  upon  the 
son  of  King  Ahab  for  the  crime  committed  by  the 
father,  illustrating  by  a  shining  example  the  words, 
"For  I  the  Lord  thy  God  am  a  jealous  God,  visiting 
the  iniquity  of  the  fathers  upon  the  children,  unto 
the  third  and  fourth  generation  of  them  that  hate 
me."  But  apart  from  the  dramatic  and  literary 
interest  of  this  story,  and  its  value  as  an  illustration 
of  certain  ethical  principles,  it  has  many  interesting 
legal  elements. 

Naboth,  a  wealthy  landowner  in  northern  Palestine, 
and  one  of  the  leading  men  of  the  city  of  Jezreel, 
owned  a  vineyard  next  to  the  grounds  surrounding 
the  summer  palace  of  Ahab,  king  of  Samaria.  The 
king,  on  one  of  his  visits  to  his  summer  palace,  cast 

167 


168  LEADING    CASES    IN    THE    BIBLE. 

a  covetous  eye  on  the  vineyard  of  Naboth,  and,  having 
sent  for  him,  said,  "Give  me  thy  vineyard  that  I 
may  have  it  for  a  garden  of  herbs,  because  it  is  near 
unto  my  house,  and  I  will  give  thee  for  it  a  better 
vineyard  than  it,  or,  if  it  seem  good  to  thee,  I  will 
give  thee  the  worth  of  it  in  money."  This  proposi- 
tion, fair  enough,  judged  from  a  modern  point  of 
view,  was  not  so  pleasing  to  Naboth,  whose  natural 
attachment  to  his  patrimonial  estate  was  strengthened 
by  the  immemorial  custom  among  the  Hebrews,  of 
preserving  the  estate  in  the  family,  unless  dire  neces- 
sity required  its  alienation. 

Originally  lands  were  entirely  inalienable,  but  with 
the  growth  of  commercial  life  under  the  reign  of  the 
kings,  concessions  were  gradually  made  in  favor  of 
the  alienation  of  landed  property,  with  a  proviso, 
however,  that  in  the  year  of  the  jubilee  all  lands 
were  to  revert  to  the  family  of  the  owner  who  had 
aliened  them.  To  men  like  Naboth,  who  had  no 
reason  for  parting  with  their  estates,  the  very  thought 
of  giving  away  or  selling  them  was  akin  to  sacrilege, 
and  thus  Naboth  answered  the  king,  "It  is  forbidden 


NABOTH'S    VINEYARD.  169 

me  by  the  Lord  that  I  should  give  the  inheritance 
of  my  fathers  unto  thee."  As  the  kingship  was  still 
something  new  in  Israel  and  the  ancient  liberties  of 
the  people  had  not  yet  been  entirely  destroyed  by 
the  monarchial  rule,  he  had  to  be  satisfied  with  this 
answer. 

When  he  returned  to  his  capitol,  however,  he 
showed  such  marked  signs  of  displeasure  at  the  treat- 
ment he  had  received  from  Naboth,  that  his  wife, 
Queen  Jezebel,  whose  name  has  since  become  a  syn- 
onym for  deviltry,  asked  him,  "Why  is  thy  spirit  so 
sad  that  thou  eatest  no  bread?"  Thereupon  the 
king  told  her  the  story,  quoting  Naboth  as  saying, 
"I  will  not  give  thee  my  vineyard." 

Jezebel,  who,  as  the  daughter  of  a  despotic  Phoe- 
nician king,  the  king  of  Sidon,  had  been  brought  up 
in  her  father's  house  to  look  upon  the  mere  whim 
and  caprice  of  the  king  as  higher  and  stronger  than 
any  law  or  custom,  lost  patience  at  her  husband's 
meek  recital  of  Naboth 's  refusal  of  his  request.  With 
bitter  irony,  she  said  to  him,  "Dost  thou  now  indeed 
reign  over  Israel?"  adding,  "Arise  and  eat  and  let 


170  LEADING    CASES    IN    THE    BIBLE. 

thy  heart  be  merry,  for  I  will  give  thee  the  vineyard 
of  Naboth,  the  Jezreelite." 

The  manner  in  which  she  kept  her  promise  showed 
how  deep  were  the  inroads  which  royal  usurpation 
had  made  upon  the  liberties  of  the  people.  It  must 
be  premised  that  under  the  ancient  constitution  of 
the  Hebrew  Commonwealth  each  community  was 
practically  independent  and  was  ruled  by  its  own 
elders.  With  the  establishment  of  the  kingship,  new 
officials  appear,  namely,  the  royal  judges  who  sit  with 
the  elders  in  the  various  cities  of  the  kingdom.  As 
the  kingship  grew  stronger,  the  autonomy  of  the 
elders  declined.  By  force  of  intrigue  their  authority 
was  undermined,  and,  as  in  the  present  case,  corrupt 
men  were  put  into  office  under  royal  influence,  who 
became  pliant  tools  in  the  hand  of  their  royal  masters. 

The  queen  evidently  knew  upon  whom  she  could 
rely  to  carry  out  her  purpose,  for  she  issued  orders 
in  the  name  of  the  king  and  sealed  them  with  his  seal, 
and  sent  them  to  the  elders  and  princes  who  were  in 
Naboth  's  city  and  who  sat  with  him  in  the  local  coun- 
cil.    It  is  not  to  be  presumed  that  she  issued  these 


NABOTH'S    VINEYARD.  171 

writs  or  orders  to  all  the  elders  mdiseriminately. 
She  probably  had  several  men  in  office  in  the  town 
of  Jezreel  upon  whom  she  could  rely  to  carry  out  her 
orders.     She  wrote  to  them  as  follows: 

* '  Proclaim  a  fast  and  place  Naboth  in  the  assembly 
of  the  people  and  let  him  be  confronted  with  two 
worthless  fellows  that  they  may  testify  against  him, 
saying,  'Thou  didst  blaspheme  God  and  the  king,' 
and  then  let  him  be  taken  out  to  the  place  of  execu- 
tion and  be  stoned  to  death." 

The  order  to  place  Naboth  in  the  assembly  was  in 
fact  an  order  to  place  him  on  trial  by  his  peers,  the 
members  of  the  council  of  elders  who  "sat  with  him." 
Her  order  to  have  witnesses  suborned  to  perjure 
themselves,  and  the  fact  that  her  orders  were  carried 
out  to  the  letter,  throw  a  clear  light  upon  the  admin- 
istration of  the  law  under  a  despotic  ruler.  It  is 
probable  that  in  her  secret  instructions  to  her  tools 
she  told  them  what  Naboth  had  actually  said  to  the 
king,  and  how  this  might  be  perverted  into  blasphemy 
and  lese-majeste. 

Violent  as  was  this  debauchery  of  justice  by  the 


172  LEADING    CASES    IN    THE    BIBLE. 

queen,  it  was,  however,  done  according  to  strict  form 
of  law,  for  the  royal  power  in  Israel  was  not  yet 
strong  enough  to  violate  all  popular  traditions  and 
forms  of  procedure,  and  accomplish  its  ends  by  arbi- 
trary measures. 

When  the  elders  of  Jezrecl  had  received  their 
orders  from  the  queen,  they  proceeded  to  carry  them 
out  to  the  letter.  They  gathered  the  assembly  and 
placed  Naboth  on  trial,  produced  the  perjured  wit- 
nesses, who  testified  against  Naboth  in  accordance 
with  her  instructions,  "Naboth  has  blasphemed  God 
and  the  king,"  and  thereupon  he  was  convicted  and 
taken  to  the  common  place  of  execution,  without  the 
city,  and  stoned  to  death. 

The  elders  in  the  case  contented  themselves  with 
following  the  mere  form  of  procedure,  and  disre- 
garded all  the  rules  of  practice  which  the  Jewish  law 
had  established  for  the  protection  of  one  charged  with 
crime.  In  this  case  the  examination  of  the  witnesses 
seems  to  have  been  perfunctory  and  intended  merely 
to  satisfy  the  multitude  of  onlookers  and  townsmen 
of  Naboth. 


NABOTH'S    VINEYARD.  173 

The  judicial  murderers  having  executed  the  queen's 
writ,  made  their  return  in  due  form,  to  wit,  "Naboth 
is  stoned  and  is  dead." 

When  the  queen  received  this  message,  she  said  to 
Ahab,  "Arise  and  take  possession  of  the  vineyard  of 
Naboth,  the  Jezreelite,  which  he  refused  to  give  thee 
for  money,  for  Naboth  is  not  alive  but  is  dead,"  and 
Ahab  went  down  to  Jezreel  for  the  purpose  of  taking 
possession  of  the  coveted  land. 

The  question  arises,  By  what  right  did  the  king 
take  possession  of  the  land  upon  the  death  of  its 
owner  ?  If  Naboth  had  children,  they  would  inherit ; 
in  the  absence  of  children  his  nearest  kinsmen  would 
inherit,  so  that  the  inheritance  of  his  fathers  would 
not  pass  out  of  his  family  or  tribe.  There  evidently 
were  several  versions  of  this  affair  current  among  the 
people,  for  in  the  passage  in  Second  Kings  (IX,  26) 
there  is  a  reference  to  the  fact  that  Naboth  did  have 
sons  who  also  fell  victims  to  the  covetousness  of  the 
king. 

It  was  the  law,  anciently,  that  the  children  were 
put  to  death  for  the  crime  of  the  parent,  until  the 


174  LEADING    CASES    IN    THE    -BIBLE. 

promulgation  of  the  law  "The  parents  shall  not  be 
put  to  death  for  the  children,  and  the  children  shall 
not  be  put  to  death  for  the  parents;  each  man  shall 
be  put  to  death  for  his  own  crime."  (Deuteronomy 
XXIV,  16.)  As  Naboth  had  been  convicted  and 
sentenced  to  death,  his  children  suffered  the  same 
punishment. 

As  to  the  right  of  the  king  to  take  possession  of  the 
inheritance,  this  may  have  been  founded  either  upon 
his  kinship  with  Naboth  or  upon  his  right  as  ultimus 
haeres  in  default  of  lawful  heirs,  but  there  is  noth- 
ing in  the  Jewish  law  to  warrant  the  belief  that  the 
King  or  the  State  had  any  right  to  inherit  property 
upon  the  death  of  the  owner  without  lawful  heirs, 
nor  is  there  any  evidence  of  forfeiture  of  the  estate 
of  the  felon  who  has  been  convicted  and  put  to  death. 
We  must,  therefore,  assume  that  the  king's  possession 
of  Naboth 's  vineyard  was  simply  the  act  of  an  auto- 
cratic despot.  No  doubt,  Ahab  himself  would  never 
have  dared  to  take  such  a  step  in  violation  of  the 
ancient  custom  and  laws  of  his  people,  but  Jezebel, 
whose  character  and  training  had  left  in  her  no  con- 


NABOTH'S   VINEYARD.  175 

scientious  scruples  on  this  score,  did  not  hesitate  to 
establish  a  new  precedent  for  the  crown. 

Although  the  people  were,  for  the  time  being,  pla- 
cated by  the  apparent  regularity  in  the  form  of  the 
trial  of  Naboth,  they  perceived  the  motive  for  the 
prosecution  as  soon  as  the  king  took  possession  of 
Naboth 's  estate.  The  biblical  account  introduces  the 
prophet  Elijah  talking  with  Ahab  on  the  highway 
and  denouncing  the  crime  and  threatening  him  with 
divine  vengeance.  "Thus  saith  the  Lord,  Hast  thou 
killed  and  also  taken  possession?  In  the  place  where 
dogs  lick  the  blood  of  Naboth,  shall  dogs  lick  thy 
blood,  even  thine."  Ahab,  overcome  with  contrition, 
humbled  himself  and  did  penance  for  the  crime,  and 
the  prophet  was  then  informed  that  not  in  Ahab's 
day  would  vengeance  be  taken,  "but  in  his  son's 
days,  would  the  evil  be  brought  upon  his  house"; 
and  later  on  (2  Kings  IX,  25-35),  when  his  son, 
King  Jehoram,  was  slain  by  Jehu,  his  body  was 
thrown  into  the  field  of  Naboth,  the  Jezreelite. 
"For,"  said  Jehu  to  his  companion,  "I  remember 
how  that  when  I  and  thou  were  riding  together,  after 


176  LEADING    CASES    IN    THE    BIBLE. 

Ahab  his  father,  the  Lord  laid  this  burden  upon  him. 
'Surely  I  have  seen  this  day  the  blood  of  Naboth  and 
the  blood  of  his  sons,'  saith  the  Lord,  'and  I  will  re- 
quite thee  in  this  very  plat  of  ground.'  " 

The  words  here  put  into  the  mouth  of  the  prophet 
Elijah,  threatening  Divine  vengeance  for  Ahab's 
crime,  probably  expressed  the  indignation  of  the 
people  at  the  enormity  of  the  offense,  and  at  the 
prostitution  of  justice  by  the  king  and  queen.  It 
was  such  unlawful  assumption  of  authority  on  the 
part  of  the  kings  that  prevented  the  monarchy  from 
flourishing  in  Israel.  The  old  customs  and  laws 
which  had  been  temporarily  placed  in  abeyance  dur- 
ing the  reign  of  the  kings  were  revived  immediately 
upon  the  fall  of  the  kingdom,  and  after  the  return  of 
the  Israelites  from  the  Babylonian  captivity,  and  still 
later,  after  the  destruction  of  the  second  temple  by 
Titus,  the  reign  of  law  revived  and  reestablished 
itself  among  the  Jewish  people. 


A  CONVEYANCE  OF  LAND  TO  THE 
PROPHET  JEREMIAH. 

Jeremiah  XXXII,  6-15. 

The  purchase  of  the  Cave  of  Machpelah,  illustrates 
the  method  of  conveying  land  before  the  introduction 
of  written  records.  The  conveyance  to  Jeremiah 
shows  the  method  followed  during  the  last  days  of 
the  Jewish  kingdom,  at  the  beginning  of  the  sixth 
century  before  the  Christian  era.  At  this  time  the 
art  of  writing  seems  to  have  been  generally  practiced, 
and  accordingly  the  form  of  procedure  which  was  in 
vogue  during  the  earlier  period  was  modified.  The 
procedure  under  consideration  shows  distinct  traces 
of  the  influence  of  Babylonian  law,  more  especially 
in  the  duplication  of  the  deed  of  conveyance  and  in 
the  manner  in  which  it  was  placed  on  record. 

For  the  purpose  of  better  understanding  the  reason 

for  the  introduction  of  this  fragment  of  ancient  law 

into  the  book  of  the  prophet  Jeremiah,  it  must  be 

borne  in  mind  that  the  doom  of  Judea  was  impend- 

12  177 


178  LEADING    CASES    IN    THE    BIBLE. 

ing.  The  king  of  Babylon  had  entered  the  land,  had 
deposed  the  king  of  Judea  and  had  placed  his  uncle, 
Zedekiah  on  the  throne.  Babylonian  soldiers,  tax 
gatherers  and  other  officials  appeared  in  all  parts  of 
the  land,  and  wise  statesmen  foresaw  the  end  of  Jew- 
ish independence.  Among  these  farseeing  men  was 
Jeremiah,  a  man  of  noble  descent,  of  priestly  lineage 
and  of  commanding  position  in  the  state,  who  had 
been  thrown  into  prison  by  King  Zedekiah  because 
he  had  foretold  the  political  destruction  of  the  Jewish 
state,  Jeremiah's  influence  upon  the  people  was  very 
great,  and  now  that  he  had  accomplished  his  purpose 
in  opening  their  eyes  to  the  true  condition  of  affairs 
and  impressing  them  with  the  fact  that  the  state  was 
in  its  decline,  he  sought  to  console  them  with  the 
thought  that  although  the  present  state  was  doomed, 
a  new  state  would  be  established  upon  its  ruins. 

For  this  purpose  he  used  the  incident  about  to  be 
described,  as  a  symbol  of  the  reestablishment  of  the 
state.  The  point  lay  in  the  fact  that  he,  Jeremiah, 
although  then  in  prison  because  of  his  prophecy  of 
the  destruction  of  the  state,  nevertheless,  by  taking 


CONVEYANCE    OF    LAND    TO    JEREMIAH.  179 

a  deed  of  conveyance  of  land,  manifested  his  belief 
in  the  fact  that  the  state  would  be  reestablished,  that 
houses  and  fields  would  yet  again  be  bought,  and 
that  the  people  would  be  brought  back  out  of  their 
captivity.  Readers  of  Roman  history  will  recall  a 
singular  event  recorded  by  Livy  (Book  XXVI,  chap- 
ter XI),  which  indicated  faith  in  the  ultimate  su- 
premacy of  the  Roman  arms  equal  to  Jeremiah's 
faith  in  the  ultimate  return  of  the  people  of  Israel 
to  their  ancient  habitations.  Livy  records  the  fact 
that  when  Hannibal  was  approaching  Rome,  he  was 
startled  by  the  information  obtained  from  a  Roman 
prisoner,  that  the  ground  on  which  his  army  was  then 
camping,  had  been  sold  at  Rome  and  that  the  price 
had  not  fallen. 

While  Jeremiah  was  in  the  court  of  the  prison,  his 
kinsman,  Hanamel,  came  to  him  and  said,  "I  pray 
thee,  buy  my  field  that  is  in  Anathoth,  which  is  in 
the  land  of  Benjamin,  for  to  thee  belongs  the  right 
of  inheritance,  and  to  thee  belongs  the  redemption, 
therefore  buy  it  for  thyself."  When  a  man  desired 
to  dispose  of  his  inheritance,  it  was  the  right  of  his 


180  LEADING    CASES    IN    THE    BIBLE. 

nearest  kinsman  to  purchase  it,  and  only  after  the 
kinsmen,  in  the  order  of  precedence,  had  waived  their 
right  were  strangers  permitted  to  acquire  it.  This 
right  is  spoken  of  as  to  the  right  of  inheritance  and 
the  right  of  redemption.  Jeremiah  as  the  nearest 
kinsman  of  Hanamel,  exercised  his  right  to  purchase 
the  field.  The  formalities  consisted  in  weighing  the 
purchase  money,  delivering  it  to  the  seller,  preparing, 
sealing  and  attesting  the  deed  of  conveyance,  and 
placing  the  deed  on  record.  Jeremiah  thus  describes 
the  proceeding:  "I  bought  the  field  from  Hanamel, 
my  uncle's  son  that  is  in  Anathoth,  and  I  weighed 
out  unto  him  the  money,  seventeen  shekels  of  silver. 
And  I  wrote  it  in  a  deed  and  sealed  it  up  and  had  it 
attested  by  witnesses,  and  I  weighed  the  silver  in  the 
balance." 

The  entire  transaction  was  public  and  all  the  de- 
tails were  performed  in  the  presence  of  witnesses. 
The  purchaser  prepared  the  deed  in  duplicate,  leav- 
ing one  copy  open  and  the  other  to  be  sealed.  They 
were  presented  for  inspection  to  the  witnesses,  who 
attested  them  by  making  their  mark  or  by  signing 


CONVEYANCE    OF    LAND    TO    JEREMIAH.  181 

their  names.  After  the  two  deeds  were  inspected 
and  attested,  one  was  carefully  sealed  and  deposited 
among  the  public  records  never  to  be  opened  unless 
the  other  was  lost,  tampered  with  or  altered.  It  is 
possible  to  infer  from  the  account  of  this  conveyance 
that  both  deeds  were  placed  on  record,  one  of  them, 
sealed,  and  the  other  patent  for  public  inspection. 
If  this  is  the  manner  in  which  the  documents  were 
recorded,  it  is  similar  to  the  practice  which  now  pre- 
vails in  the  Registry  of  Wills.  The  original  will  is 
not  open  for  public  inspection,  except  under  order  of 
the  court,  whereas,  a  copy  of  it  in  the  Will  Book  is 
open  for  the  inspection  of  all  the  world.  There  is 
some  evidence  from  recent  discoveries  in  Babylonia 
that  the  latter  method  is  the  one  alluded  to  in  this 
case. 

Babylonian  explorers  have  found  legal  documents 
executed  in  duplicate  on  clay  tablets,  one  of  which 
was  enclosed  within  the  other.  In  other  words,  a 
tablet  was  first  prepared  and  then  a  case  was  made 
for  it,  and  on  the  outside  of  the  case  a  copy  of  the 
enclosed   tablet    was    inscribed;    the   case   was   then 


182  LEADING    CASES    IN    THE    BIBLE. 

sealed  and  both  copies,  one  within  the  other,  were 
filed  away  among  the  records.  This  method  would 
account  for  Jeremiah's  words,  ''And  I  took  the  deed 
of  the  purchase,  both  that  which  was  sealed  and  that 
which  was  open,  and  I  gave  the  deed  of  purchase  unto 
Baruch,  the  son  of  Neriyah,  in  the  presence  of  Hana- 
mel,  my  kinsman ;  and  in  the  presence  of  the  wit- 
nesses who  had  signed  the  deed  of  purchase;  and  in 
the  presence  of  all  the  Judeans  who  were  sitting  in 
the  court  of  the  prison."  This  public  delivery  of 
the  document,  thus  thrice  attested  in  the  presence  of 
the  seller,  the  subscribing  witnesses,  and  the  witnesses 
standing  round  about,  was  accompanied  by  the  fol- 
lowing charge:  "And  I  charged  Baruch  in  their 
presence  as  follows,  Take  these  deeds,  this  deed  of 
purchase,  both  the  sealed  and  the  open  deed  and 
place  them  in  an  earthen  vessel  (on  record)  in  order 
that  they  may  last  many  days,  for  thus  hath  said  the 
Lord  of  Hosts,  the  God  of  Israel,  'yet  again  shall 
there  be  bought  houses,  fields  and  vineyards  in  this 
land.'  " 

The  earthen  vessel  was  the  receptacle  in  the  record- 


CONVEYANCE    OF    LAND    TO    JEREMIAH.  183 

ing  office  in  which  the  documents  were  preserved. 
The  object  of  recording  them  was,  as  stated  by  Jere- 
miah, that  they  might  last  many  days,  for  it  was  pre- 
sumed by  him  that,  even  in  the  troublous  times  which 
were  then  impending,  documents  preserved  in  the 
public  record  office  were  safer  than  if  they  had  re- 
mained in  the  possession  of  any  individual.  This 
was  the  lesson  that  Jeremiah  sought  to  inculcate,  that 
in  spite  of  the  approaching  doom  of  the  state,  the 
ordinary  affairs  of  life  would  continue  as  theretofore, 
and  that  eventually  order  would  again  be  brought 
out  of  anarchy  and  a  stable  government  be  re- 
established. 

This  transaction  took  place  in  the  court  of  the 
prison  in  the  city  of  Jerusalem,  and  it  is  to  be  pre- 
sumed that  the  record  office  to  which  allusion  is  made, 
was  in  the  same  city.  Modern  explorations  in  Jeru- 
salem have  not  yet  brought  to  light  this  public  record 
office,  and  there  can  hardly  be  any  doubt  that,  some- 
where down  in  the  sub-soil  of  the  present  city,  there 
lie  buried  the  record  chambers  of  the  ancient  king- 
dom and  commonwealth  of  the  Jews,  and  it  is  to  be 


184  LEADING    CASES    IN    THE    BIBLE. 

hoped  that  the  day  is  not  far  distant  when  explora- 
tions may  be  made  on  Mount  Zion  which  will  yield 
invaluable  treasure  to  the  areheologist,  the  student  of 
the  Bible  and  the  Historian. 


THE    TRIAL    OF    JEREMIAH. 
Jeremiah  XXVI,  1-24. 

In  the  trial  of  Naboth  the  forms  of  law  were  com- 
plied with  in  order  to  give  an  appearance  of  validity 
to  what  was  in  fact  a  mere  mockery  of  justice.  The 
details  of  the  trial  are  not  given ;  we  are  simply  told 
that  Naboth  was  put  on  trial  and  th^t  two  perjured 
witnesses  were  produced  to  charge  him  with  blas- 
phemy and  high  treason,  and  that  he  was  convicted 
and  stoned  to  death.  The  Court  was  composed  of 
the  Elders  of  his  city  and  the  princes,  who  were 
probably  selected  by  the  king  to  sit  with  them  during 
the  trial.  In  Jeremiah's  case  the  constitution  of  the 
Court  and  the  procedure  followed  are  given  with 
more  particularity. 

Jeremiah,  whose  life  had  been  devoted  to  a  long 
continued  and  vain  endeavor  to  introduce  reform 
into  the  official  life  of  the  Jewish  kingdom,  made  a 
desperate  attempt  to  rouse  the  Elders  of  the  people 
to  a  realizing  sense  of  the  impending  political  doom 

185 


186  LEADING    CASES    IN    THE    BIBLE. 

that  his  sagacity  and  statecraft  foresaw.  In  this,  as 
through  his  entire  public  activity,  he  stood  forth  as 
the  avowed  mouth-piece  of  God,  never  offering  his 
advice  merely  upon  its  merits,  but  always  as  the  word 
of  God.  Thus,  it  is  recorded  that  in  the  beginning 
of  the  reign  of  Jehoiakim,  the  son  of  Josiah,  who  was 
one  of  the  last  kings  of  Judah,  Jeremiah  went  out 
into  the  great  court  of  the  Temple  at  Jerusalem,  at  a 
time  when  there  was  some  great  convocation  of  the 
people  of  all  the  surrounding  cities,  and  in  the  pres- 
ence of  all  he  pronounced  this  doom,  ''Thus  hath  said 
the  Lord,  If  ye  will  not  hearken  unto  me,  to  walk  in 
my  law,  which  I  have  set  before  you,  to  hearken  unto 
the  words  of  my  servants  the  prophets,  whom  I  send 
unto  you,  yea,  making  them  rise  up  early  and  send- 
ing them,  while  ye  have  not  hearkened;  then  will  I 
render  this  house  like  Shiloh,  and  this  city  will  I 
render  a  curse  unto  all  the  nations  of  the  earth." 
This  statement  was  made  the  basis  of  a  charge  against 
Jeremiah  for  which  his  prosecutors  sought  to  have 
him  put  to  death.  His  prosecutors  were  the  priests 
and  the  prophets,  who  were  present  and  heard  him 


TRIAL    OF    JEREMIAH.  187 

speaking  these  words  in  the  Temple  court,  and  when 
he  had  finished  speaking  they  seized  him,  saying, 
"Thou  shalt  surely  die."  A  court  was  speedily 
assembled  to  try  Jeremiah  "and  all  the  people  as- 
sembled themselves  about  Jeremiah  in  the  house  of 
the  Lord."  The  phrase  "all  the  people"  is  a  trans- 
lation of  Hebrew  words  which  I  believe  to  have  a 
technical  meaning  equivalent  to  the  word  "court." 
It  is  well  known  that  the  High  Court  of  Justice  in 
Jerusalem  sat  in  the  Temple  itself,  and  if  its  consti- 
tution was  at  all  like  that  of  the  Sanhedrin  in  post- 
exilic  days,  it  may  be  taken  for  granted  that  it  con- 
sisted of  select  men  of  the  people  of  high  standing 
and  ability.  These  men  were  joined  by  the  princes 
of  Judah,  who,  when  they  "heard  these  things,  came 
up  from  the  king's  house"  to  the  Temple  and  sat 
with  the  court  at  the  entrance  of  the  new  gate  of  the 
Temple.  The  court  was  thus  composed  of  select  men 
of  Jerusalem  and  the  princes  of  Judah,  who  were 
either  of  royal  blood  or  high  officers  of  the  crown. 
The  burden  of  the  charge  against  Jeremiah  is  found 
in  the  words  with  which  his  prosecutors  addressed 


188  LEADING    CASES    IN    THE    BIBLE. 

him  immediately  after  his  ar,rest,  "Why  hast  thou 
prophesied  in  the  name  of  the  Lord  saying,  Like 
Shiloh  shall  this  house  be  and  this  city  shall  be  ruined, 
without  an  inhabitant?" 

From  an  examination  of  the  words  of  Jeremiah 
and  from  a  consideration  of  the  general  state  of 
affairs  at  that  time  in  the  kingdom  of  Judah,  it  may 
fairly  be  presumed  that  it  was  something  more  than 
pious  zeal  that  inflamed  the  priests  and  prophets 
against  him.  The  priesthood,  against  which  many 
of  Jeremiah's  fulminations  were  directed,  was  thor- 
oughly corrupt,  and  the  prophets  were  mere  seekers 
for  popularity  who  prophesied  what  they  believed 
the  people  wished  to  hear.  Jeremiah  himself  was  of 
priestly  lineage  and  a  prophet,  but  distinguished 
among  both  these  classes  by  his  passion  for  righteous- 
ness. It  is,  therefore,  probable  that  the  priests  and 
prophets  were  merely  waiting  for  an  opportunity  to 
sieze  upon  some  statement  of  Jeremiah  for  the  pur- 
pose of  putting  an  end  to  his  prophetic  ministry,  and, 
therefore,  distorted  his  words  on  this  occasion  into  a 
blasphemous  threat  that  both  the  house  of  the  Lord 


TRIAL    OF    JEREMIAH.  189 

and  the  city  of  the  king  would  be  utterly  destroyed. 
The  crime,  therefore,  was  both  blasphemy  and  Use 
majeste,  and  it  is  quite  likely  that  it  was  only  the 
saeredness  of  the  Temple  that  prevented  his  enemies 
from  inflaming  the  public  against  him  to  such  an 
extent  as  to  cause  his  instant  death.  Standing  before 
the  court,  the  priests  and  the  prophets  said,  "This 
man  has  been  guilty  of  a  capital  offense,  for  he  hath 
prophesied  against  this  city,  as  ye  have  heard  with 
your  own  ears." 

Jeremiah 's  defense  was  simple  and  bold ;  he  frankly 
admitted  the  utterance  of  the  words  and  boldly  de- 
clared that  they  were  spoken  in  the  name  of  God, 
"The  Lord  hath  sent  me  to  prophesy  against  this 
Temple  and  against  this  city  all  the  words  that  ye 
have  heard.  But  now  amend  your  ways  and  your 
doings  and  hearken  to  the  voice  of  the  Lord  your  God ; 
and  the  Lord  will  bethink  him  of  the  evil  he  hath 
spoken  against  you.  As  for  me,  behold,  I  am  in  your 
hand;  do  with  me  as  seemeth  good  and  just  in  your 
eyes.  But  know  ye  for  certain  that  if  ye  put  me  to 
death  ye  will  surely  place  the  guilt  of  innocent  blood 


190  LEADING    CASES    IN    THE    BIBLE. 

upon  yourselves  and  upon  this  city  and  upon  its 
inhabitants,  for  in  truth  hath  the  Lord  sent  me  unto 
you  to  speak  in  your  ears  all  these  words. ' ' 

The  "guilt  of  innocent  blood"  shed  in  any  place 
rested  not  merely  upon  the  head  of  him  who  com- 
mitted the  murder,  but  upon  all  of  the  inhabitants  of 
that  place.  This  is  a  survival  of  the  old  theory  of 
blood  guiltiness,  whereby  all  the  members  of  a  man's 
household  and  family  were  responsible  for  his  deed; 
a  theory  of  law  that  was  afterwards  applied  to  the 
inhabitants  of  the  town,  even  though  they  had  no 
kinship  with  the  murderer.  In  the  Book  of  Deuter- 
onomy (XXI,  1-9)  an  elaborate  procedure  is  pre- 
scribed in  cases  where  a  dead  body  is  found  and  the 
slayer  unknown,  and  the  Elders  of  the  town,  within 
whose  limits  the  body  is  found,  must  make  the  atone- 
ment prescribed  in  this  law  in  order  to  cleanse  their 
community  of  the  blood  guilt  which  rests  upon  it. 

Jeremiah's  confession  removed  all  possible  dispute 
as  to  the  facts  of  the  case,  and  the  question  narrowed 
down  to  a  single  point:  Did  Jeremiah  in  fact  speak 
in  the  name  of  God,  as  he  professed,  or  was  he  one  of 


TRIAL    OF    JEREMIAH.  191 

the  false  prophets  concerning  whom  the  law  in  Deuter- 
onomy (XVIII,  20)  provides,  "But  the  prophet  who 
may  presume  to  speak  a  word  in  my  name  which  I 
have  not  commanded  him  to  speak,  or  who  may  speak 
in  the  name  of  other  gods— even  that  prophet  shall 
die. ' '  The  test  provided  by  the  law  in  Deuteronomy 
could  not  be  applied.  "If  thou  shouldest  say  in  thy 
heart,  How  shall  we  know  the  word  which  the  Lord 
hath  spoken?  That  which  the  prophet  speaketh  in 
the  name  of  the  Lord,  and  the  thing  do  not  happen 
and  come  not  to  pass — this  is  the  word  which  the 
Lord  hath  not  spoken."  No  sufficient  time  had 
elapsed  to  enable  this  test  of  Jeremiah's  authority  to 
be  applied,  hence  it  was  a  question  for  the  court  to 
determine  from  the  evidence  before  it,  whether  Jere- 
miah was  in  fact  a  prophet  of  God  or  merely  a  blas- 
phemer. Jeremiah's  activity  in  the  community  was 
probably  well  known  to  the  members  of  the  court. 
His  character  and  standing,  both  above  reproach, 
spoke  eloquently  in  his  favor  and  it  is  quite  likely 
that  the  character  of  his  accusers  was  likewise  well 
Icnown  to  the  court.      But  Jeremiah  was  not  com- 


192  LEADING    CASES    IN    THE    BIBLE. 

pelled  to  rely  merely  upon  his  general  standing  in 
the  community  and  his  own  protestation  of  innocence, 
for  ''There  rose  up  certain  men  of  the  Elders  of  the 
land"  and  addressed  the  court  as  follows:  "Mieah 
the  Morasthite  prophesied  in  the  days  of  Hezeldah 
king  of  Judah  and  said  to  all  the  people  of  Judah  as 
follows:  'Thus  hath  said  the  Lord  of  hosts;  Zion 
shall  be  plowed  up  like  a  field  and  Jerusalem  shall 
become  heaps  of  ruins  and  the  Temple  mount  like  the 
high  places  of  the  forest. '  Did  Hezekiah  the  king  of 
Judah  and  all  Judah  attempt  to  put  him  to  death? 
Behold,  he  did  fear  the  Lord  and  besought  the  Lord 
and  the  Lord  bethought  him  of  the  evil  which  he  had 
spoken  against  them.  And  shall  we  bring  a  great 
wickedness  on  our  souls?"  These  Elders  probably 
were  among  those  whose  authority  in  the  community 
had  been  diminished  by  the  usurpation  of  the  kings, 
and  probably  represented  the  old  nobility  of  the  land 
who  sympathized  with  Jeremiah  in  his  denunciation 
of  a  corrupt  priesthood  and  an  upstart  prophetical 
school.  In  speaking  on  behalf  of  Jeremiah,  these 
men  neither  based  their  argument  upon  Jeremiah's 


TRIAL    OF    JEREMIAH.  193 

character  nor  did  they  consider  the  principles  of  law 
involved  in  the  case,  but  they  forthwith  produced  a 
precedent,  to  wit,  the  case  of  Micah,  who  had  made 
statements  similar  to  those  of  Jeremiah,  who  had  been 
tried  before  the  king  himself  and  been  acquitted. 

Another  defender  of  Jeremiah  is  mentioned  in  the 
record,  probably  a  man  of  great  importance  in  the 
city  and  attached  to  the  royal  household.  ''The 
hand  of  Aliikam  the  son  of  Shaphan  was  with  Jere- 
miah so  as  not  to  give  him  up  into  the  hand  of  the 
people  to  put  him  to  death."  What  arguments 
Ahikam  used,  if  any,  is  not  stated.  It  may  be  that 
his  mere  appearance  for  the  defense  had  its  influence 
with  some  of  the  ''princes  of  Judah." 

After  the  court  heard  the  evidence  and  the  argu- 
ments it  pronounced  the  sentence  of  acquittal  which 
is  recorded  in  these  words,  "Then  said  the  princes 
and  the  court  unto  the  priests  and  to  the  prophets, 
This  man  has  not  been  guilty  of  a  capital  crime,  for 
in  the  name  of  the  Lord  our  God  hath  he  spoken 
unto  us." 

There  is  interpolated  in  this  record  the  case  of 
13 


194  LEADING    CASES    IN    THE    BIBLE. 

Urijah,  who  prophesied  during  the  reign  of  the  same 
king,  Jehoiakim,  "against  this  city  and  against  this 
land  according  to  all  the  words  of  Jeremiah,"  evi- 
dently emboldened  by  the  acquittal  of  the  prophets 
Micah  and  Jeremiah  of  the  charges  of  blasphemy  and 
treason.  But  it  appears  that  times  had  changed  and 
that,  notwithstanding  the  precedent  established,  the 
political  condition  of  the  kingdom  of  Judah,  in  the 
judgment  of  the  king  and  his  ministers,  no  longer 
warranted  them  in  permitting  such  denunciation  of 
authority.  The  authorities  eventually  came  to  the 
conclusion  that  for  the  peace  of  the  city  and  of  the 
crown  an  example  must  be  made  and,  like  all  tyrants, 
they  attempted  to  put  down  the  truth  by  force.  It 
must  be  remembered  that  these  events  occurred  in 
the  very  last  years  of  the  kingdom  of  Judah.  The 
king  was  at  that  time  already  paying  tribute  to 
Nebuchadnezzar,  king  of  Babylon,  and  a  few  years 
thereafter  the  Babylonian  armies  overran  Judea  and 
carried  off  the  king  and  many  of  his  people  into 
captivity.  It,  therefore,  required  men  of  the  highest 
type  of  courage  to  speak  the  truth  about  the  condi- 


TRIAL    OF    JEREMIAH.  195 

tion  of  the  kingdom  at  that  tune.  Urijah  was  one 
of  these  men.  "And  when  King  Jehoiakim  and  all 
his  mighty  men  and  all  the  princes  heard  his  words 
the  king  sought  to  put  him  to  death :  but  when  Urijah 
heard  it  he  was  afraid  and  fled,  and  arrived  in 
Egypt."  Unfortunately  for  Urijah  he  had  chosen 
a  poor  place  for  his  refuge,  for  King  Jehoiakim  had 
been  given  the  crown  of  Judah  by  the  king  of  Egypt, 
who  had  made  war  upon  Jehoiakim 's  brother  and 
had  deposed  him.  The  king  of  Judah,  therefore, 
owed  his  throne  to  the  Egyptian  king  and  was  prac- 
tically his  vassal.  Having  heard  that  Urijah  had 
taken  refuge  in  Egypt  he  readily  obtained  his  extra- 
dition. "King  Jehoiakim  sent  some  men  into  Egypt, 
.  .  .  and  they  fetched  Urijah  out  of  Egypt  and 
brought  him  unto  King  Jehoiakim  who  slew  him 
with  the  sword  and  cast  his  dead  body  into  the  graves 
of  the  common  people." 

As  events  subsequently  proved  it  had  been  better 
if  the  king  had  done  justice  to  Urijah  and  given  heed 
to  the  repeated  warnings  of  gifted  and  honest  seers 
concerning  the  administration  of  the  affairs  of  the 
kingdom. 


THE    TRIAL   OF   JOB   IN   THE    COUET    OF 
HEAVEN. 

Jol  I,  6-12,  II,  1-7,  XLII,  10. 

The  picture  presented  to  us  in  the  description  of 
the  Court  of  Heaven  in  the  Book  of  Job  leads  us  back 
to  the  days  of  a  naive  but  splendid  mythology.  The 
narrator  describes  the  assembling  of  the  court  pre- 
sided over  by  God  himself.  He  attempts  no  descrip- 
tion of  the  appearance  of  the  court,  but  the  imagina- 
tion can  readily  supply  the  description  omitted.  The 
palace  of  the  king  with  its  lofty  chambers  and  ante- 
chambers, monolithic  columns  supporting  a  massive 
roof,  huge  images  of  fabulous  monsters,  part  men, 
part  beast,  guarding  the  entrances.  "The  white, 
green  and  blue  hangings  with  cords  of  fine  linen  and 
purple  on  rollers  of  silver  and  pillars  of  marble; 
couches  of  gold  and  silver  upon  a  pavement  of  green 
and  white  and  yellow  and  black  marble,"  the  mag- 
nificence of  the  palace  of  Ahasuerus  may  well  be 
transferred  in  imagination  to  the  temple  in  the  mind 

196 


TRIAL   OF   JOB.  197 

of  the  author  of  the  Book  of  Job,  in  which  the  Court 
of  Heaven  assembled.  Or  perhaps  there  floated  be- 
fore his  mind  some  image  of  the  palace  which  Solo- 
mon built  for  himself  and  which  is  described  in  its 
details  in  the  seventh  chapter  of  the  First  Book  of 
Kings,  and  in  it  was  ' '  The  porch  for  the  throne  where 
he  might  judge,  the  porch  of  judgment;  and  it  was 
covered  with  cedar  from  one  side  of  the  floor  to  the 
other."  The  naive  anthropomorphism  of  the  writer 
of  the  Book  of  Job  pictures  God  himself  sitting  on 
the  judgment  seat  in  his  great  hall  of  judgment  like 
the  king  in  his  royal  palace  awaiting  the  assembling 
of  his  family,  his  lords  and  their  retinue.  "Now 
there  was  a  day  when  the  sons  of  God  came  to  pre- 
sent themselves  before  the  Lord  and  the  Satan 
(Accuser)  also  came  among  them."  The  sons  of 
God  are  the  mythical  personages  who,  under  the 
presidency  of  God  himself,  constitute  the  Court  of 
Heaven,  fashioned  like  the  court  of  the  king  which 
was  probably  an  outgrowth  of  the  old  tribal  courts 
which  met  in  more  primitive  times  under  the  presi- 
dency of  the  tribal  chieftain  or  patriarch.     Among 


198  LEADING   CASES   IN   THE    BIBLE. 

the  officers  of  this  court  was  one  named  the  Satan, 
who,  in  the  rabbinical  literature,  is  known  as  Satan 
the  Accuser,  and  whose  functions  seem  to  have  re- 
quired him  to  perform  duties  similar  to  those  of  the 
chief  of  the  detective  police  of  the  Russian  empire. 
It  was  his  duty  to  go  about  watching  the  people  and 
noting  their  conduct  and  reporting  thereon  at  the 
next  session  of  the  court.  It  was  his  duty,  further- 
more, to  act  as  prosecutor  and  inquisitor,  not  only 
to  note  open  breaches  of  the  law,  but  even  to  question 
the  honesty  of  honest  men  and  to  put  them  on  the 
rack  to  test  them.  The  entire  atmosphere  of  this 
description  of  the  trial  of  Job  in  the  Court  of  Heaven 
is  almost  convincingly  un-Jewish  and  in  all  prob- 
ability a  reflection  of  ideas  prevailing  in  Babylonia, 
where  a  cult  existed  in  which  such  strange  beings  as 
"sons  of  God"  and  Satan  had  their  place.  The  court 
having  assembled,  God  singled  out  the  Accuser  and 
asked  for  a  report, 

"And  the  Lord  said  unto  the  Accuser,  Whence 
comest  thou?" 

"And  the  Accuser  answered  the  Lord  and  said, 


TRIAL    OF    JOB.  199 

From  roaming  over  the  earth  and  from  wandering 
through  it. ' ' 

''And  the  Lord  said  unto  the  Accuser,  Hast  thou 
directed  thy  attention  toward  my  servant  Job,  for 
there  is  none  like  him  on  the  earth.  A  man  perfect 
and  upright  who  feareth  God  and  escheweth  evil?" 

"And  the  Accuser  answered  the  Lord  and  said. 
Is  it  for  naught  that  Job  feareth  God  ?  Behold,  thou 
hast  indeed  placed  a  fence  about  him  and  about  his 
house  and  about  all  that  he  hath  on  every  side.  The 
work  of  his  hands  hast  thou  blessed  and  his  cattle  are 
far  spread  out  in  the  land,  but  stretch  only  forth  thy 
hand  and  touch  all  that  he  hath  and  see  whether  he 
will  not  renounce  thee  to  thy  face." 

"And  the  Lord  said  unto  the  Accuser,  Behold  all 
that  is  his  be  in  thy  power,  only  against  himself  shalt 
thou  not  stretch  forth  thy  hand." 

And  the  Accuser  went  forth  from  the  presence  of 
the  Lord. 

The  words  of  the  Accuser  exemplify  the  sincerity 
of  bigotry.  The  honest  man  is  not  to  be  taken  on 
faith,  but  his  very  honesty  is  suspected  and  his  stead- 


200  LEADING   CASES   IN   THE    BIBLE. 

fastness  is  to  be  tested  by  persecution.  In  this  an- 
cient legend  the  Accuser,  one  of  these  splendid  sons  of 
God,  stalks  through  the  land  testing  the  righteousness 
of  men  by  inflicting  pain.  In  a  later  age  he  reap- 
pears as  a  cowled  white-faced  stern  inquisitor  who, 
with  rack  and  screw,  seeks  victims  for  the  consuming 
wrath  of  the  God  of  love. 

Job  is  placed  in  the  hands  of  the  Accuser  and  suf- 
fers grievous  pain  and  heartrending  sorrow,  not  be- 
cause of  any  wrong-doing,  but  as  a  test  of  his  right- 
eousness. In  this  legend,  later  ages  found  a  pre- 
cedent for  the  infliction  of  torture  upon  heretics, 
witches,  political  suspects  and  other  persons  under 
the  ban  of  suspicion,  and  in  the  name  of  religion, 
and  of  law,  inflicted  those  horrible  punishments  upon 
innocent  persons  which  fortunately  are  now  mere 
historical  memories  except,  perhaps,  in  that  great 
East  European  governmental  system  which  continues 
to  apply  to  its  hapless  subjects  methods  of  adminis- 
tration and  government,  worthy  of  the  darkness  of 
the  Middle  Ages. 

Job   saw   his  cattle  destroyed,   his   herdsmen   en- 


TRIAL    OF    JOB.  201 

slaved,  and  his  children  buried  in  the  ruins  of  their 
own  house,  and  yet  his  piety  rose  triumphant,  and 
Job  ' '  did  not  sin  and  attributed  no  injustice  to  God. ' ' 
"Again  there  was  a  day  when  the  sons  of  God  came 
to  present  themselves  before  the  Lord  and  the  Ac- 
cuser also  came  in  the  midst  of  them  to  present  him- 
self before  the  Lord." 

"Then  said  the  Lord  unto  the  Accuser,  Whence 
comest  thou  now?" 

"And  the  Accuser  answered  the  Lord  and  said. 
From  roaming  over  the  earth  and  from  wandering 
through  it." 

"And  the  Lord  said  unto  the  Accuser,  Hast  thou 
directed  thy  attention  toward  my  servant  Job,  for 
there  is  none  like  him  on  the  earth;  a  man  perfect 
and  upright  who  feareth  God  and  escheweth  evil  and 
he  is  still  holding  fast  to  his  integrity,  and  thou  hast 
incited  me  against  him  to  destroy  him  without  cause." 

"And  the  Accuser  answered  the  Lord  and  said, 
Skin  for  skin,  Yea,  all  that  a  man  hath  will  he  give 
for  his  life.  But  stretch  forth  thy  hand  and  touch 
his  bone  and  flesh  and  see  whether  he  will  not  re- 
nounce thee  to  thy  face." 


202  LEADING    CASES    IN   THE    BIBLE. 

''And  the  Lord  said  unto  the  Accuser,  Behold,  he 
is  in  thy  hand;  only  take  care  of  his  life." 

*  *  Thereupon  the  Accuser  went  forth  from  the  pres- 
ence of  the  Lord  and  smote  Job  with  a  sore  inflamma- 
tion from  the  sole  of  his  foot  unto  the  crown  of  his 
head." 

In  spite  of  these  additional  sufferings  Job  con- 
tinued to  hold  fast  to  his  integrity,  and  the  result  of 
the  trial  showed  that  his  steadfastness  and  his  faith 
were  unshaken.  He  would  not  renounce  God,  even 
though  he  believed  himself  to  be  unjustly  punished 
by  him.  As  a  result  of  this  steadfastness  his  trial 
ended  in  his  complete  rehabilitation, 

"And  the  Lord  received  Job  in  favor,  and  the  Lord 
brought  back  the  captivity  of  Job.  .  .  .  And  the 
Lord  increased  all  that  Job  had  had  two-fold.  .  .  . 
And  the  Lord  blessed  the  latter  end  of  Job  more 
than  his  beginning. ' ' 

Under  all  modern  systems  of  law  in  which  the 
presumption  of  innocence  of  the  accused  prevails, 
the  possibility  of  such  a  trial  has  ceased.  In  the 
Talmudic    Code,    the    rights    of    the    accused    were 


TRIAL   OF   JOB.  203 

guarded  with  such  scrupulous  care  that  conviction 
upon  charges  of  high  crimes  was  rendered  almost 
impossible.  The  precedent  established  by  this  case 
of  Job  was  never  followed  in  the  Jewish  courts  of 
law,  and  it  was  not  until  the  period  of  the  inquisition 
that  the  church  harked  back  to  this  ancient  legend, 
finding  in  it  some  shadow  of  an  excuse  for  the  intro- 
duction of  that  system  of  procedure  which  was  the 
crowning  disgrace  of  ecclesiastical  organization  and 
the  horror  of  which  has  effectually  prevented  the 
reestablishment  of  ecclesiastical  dominion  among  civil- 
ized men. 


JOB'S   APPEAL   FROM   THE   JUDGMENT    OF 
GOD. 

Although  the  Book  of  Job  was  written  to  point  a 
moral  and  expound  a  certain  view  of  sin  and  punish- 
ment, the  author  has  cast  it  into  a  form  which  gives 
it  a  distinctively  juridical  character..  Its  language, 
moreover,  is  full  of  legal  phrases,  and  figures  and 
metaphors  based  upon  proceedings  in  Courts  of  Law, 
and  the  subject  matter  of  the  debate  is  tossed  from 
side  to  side  in  animated  discussion  and  hammered 
out  in  the  heat  of  forensic  conflict. 

What  is  the  real  subject  of  the  argument  and  the 
theory  upon  which  it  is  approached  by  each  of  the 
speakers?  The  prologue  in  heaven  may  be  ignored 
for  the  present,  because  it  introduces  matters  un- 
known to  the  real  contending  parties  and,  therefore, 
presents  an  element  which  does  not  enter  into  their 
argument.  Let  us  take  the  facts  of  the  case  as 
actually  known  to  Job  and  his  friends. 

Job  lived  in  the  land  of  Uz,  and  was  a  man  perfect 

204 


JOB'S    APPEAL.  205 

and  upright  and  one  that  feared  God  and  eschewed 
evil.  He  had  sons  and  daughters,  was  rich  in  cattle 
and  possessed  a  very  great  household ;  and  was  known 
and  honored  as  the  greatest  of  all  the  children  of  the 
East.  So  pious  was  he  that  after  his  children  had 
indulged  in  feasting  it  was  his  custom  to  sanctify 
them  and  to  offer  burnt  offerings  in  their  behalf,  not 
only  for  any  open  sin  that  they  might  have  com- 
mitted, but  also  lest  in  their  enjoyment  and  revelry 
they  had  renounced  God  in  their,  hearts.  Now  it 
befell  that  suddenly  on  a  certain  day  a  series  of 
frightful  calamities  overtook  Job.  Breathless  mes- 
sengers came  running  to  his  house  in  quick  succession, 
telling  him  that  robbers  had  killed  his  servants  and 
had  stolen  his  cattle;  that  his  sheep  had  been  burnt 
up  by  a  fire  from  heaven;  and,  as  a  heart-rending 
climax,  that  his  sons  and  daughters,  who  were  eating 
and  drinking  in  their  eldest  brother's  house,  were 
killed  in  its  ruins,  in  the  midst  of  a  great  wind  storm 
from  the  wilderness.  Upon  receiving  these  tidings 
of  woe.  Job's  simple  faith  asserted  itself,  and  he  fell 
down  upon  the  ground  and  worshipped  God,  saying, 


206  LEADING    CASES   IN   THE    BIBLE. 

"The  Lord  gave,  and  the  Lord  hath  taken  away; 
Blessed  be  the  name  of  the  Lord."  Before  he  had 
recovered  from  these  misfortunes  he  himself  was 
smitten  with  sore  boils,  from  the  sole  of  his  foot  unto 
his  crown,  and  even  as  he  sat  among  the  ashes 
scraping  himself  M'ith  a  potsherd,  he  said  to  his  wife, 
in  answer  to  her  counsel  that  he  renounce  God  and 
die,  *'Thou  speakest  as  one  of  the  foolish  women 
speaketh.  What,  shall  we  receive  good  at  the  hand 
of  God,  and  shall  we  not  receive  evil?"  Here  the 
author  of  the  Book  of  Job  adds,  "In  all  this  did  not 
Job  sin  with  his  lips."  According  to  the  author, 
Job  was  probably  already  sinning  in  his  heart.  Job 
looked  upon  these  misfortunes  as  a  judgment  of  God ; 
but  he  knew  that  he  did  not  deserve  them  and  that, 
therefore,  the  judgment  of  God  must  be  at  fault. 

Now  three  great  friends  of  Job— Eliphaz,  Bildad 
and  Zophar— visited  him  and  when  they  saw  him, 
sitting  among  the  ashes,  despoiled  of  his  wealth,  be- 
reft of  his  children  and  foul  with  sores,  they  wept 
and  mourned  and  sat  down  with  him  upon  the 
ground  for  seven  days  and  seven  nights  in  silence, 


JOB'S   APPEAL.  207 

each  of  them  revolving  in  his  mind  the  situation  of 
affairs,  and  trying  to  account  for  it.  Job,  as  well  as 
his  friends,  had  a  theory,  and  the  development  of 
this  theory  and  its  application  to  the  facts  of  Job's 
case  form  the  important  part  of  the  entire  book. 
What  was  this  theory?  It  was,  that  Job's  suffering 
was  a  punishment  inflicted  upon  him  in  execution  of 
a  judgment  of  God,  rendered  against  him  because  of 
some  wrong  doing  of  which  he  had  been  guilty. 
There  was  no  doubt  in  their  minds  that  Job's  inflic- 
tion was  the  result  of  divine  judgment,  and  as  God 
could  not  be  conceived  as  unjust,  the  judgment  must 
have  been  a  just  one;  and,  therefore,  the  friends  of 
Job  were  constrained  to  assume  that  Job  had  been 
guilty  of  wrong  doing.  As  a  matter  of  fact,  they 
knew  that  his  whole  life  had  been  filled  with  good 
deeds;  but  whenever  they  were  mentally  confronted 
by  the  dilemma  that  God  was  unjust  or  that  Job  was 
a  sinner,  they  chose  the  latter  as  the  only  possible 
alternative.  On  the  other  hand.  Job  likewise  believed 
his  sufferings  to  be  the  result  of  a  judgment  of  God, 
but  knowing  that  he  was  innocent  of  wrong  doing. 


208  LEADING    CASES    IN    THE    BIBLE.  - 

he  was  driven  to  the  conclusion  that  the  judgment 
was  unjust.  Of  course,  neither  Job  nor  his  friends 
knew  what  the  author  of  the  book  knew ;  namely,  that 
the  whole  matter  had  been  previously  arranged  in  the 
High  Court  of  Heaven,  and  that  both  Job  and  his 
friends  were  mere  puppets  in  the  hand  of  God. 

Neither  Job  nor  his  friends  were  prepared  to 
argue  the  case,  and  consequently  their  theories  of 
the  cause  of  his  sufferings  were  not  at  first  clearly 
thought  out  and  expressed,  but  were  developed  and 
perfected  in  the  course  of  the  argument.  For  the 
purpose  of  the  argument,  therefore,  we  must  assume, 
as  Job  and  his  friends  did,  that  a  judgment  had 
been  rendered  against  him— a  judgment  from  which 
his  sense  of  right  and  consciousness  of  innocence 
prompted  him  to  appeal.  The  word  "appeal"  is 
not  to  be  understood  in  the  modern  sense.  Under 
our  system  of  judicature,  courts  are  subordinated  to 
each  other,  and  an  appeal  lies  to  a  higher  court  from 
the  judgment  rendered  in  the  lower  court.  At  Jewish 
law  there  was  no  appeal  from  the  judgment  of  a 
court  of  law,  since  the  judgment  was  rendered  in 


JOB'S    APPEAL.  20'.) 

the  name  of  God.  "Ye  (judges)  shall  not  be  afraid 
of  the  face  of  man,  for  the  judgment  is  of  God" 
(Deuteronomy  I,  17).  Now,  coming  to  the  case  of 
Job,  the  question  arises,  In  what  way  could  he  appeal 
from  the  judgment  of  God?  Only  to  God  himself, 
who  had  rendered  the  judgment.  But  upon  what 
ground  could  he  appeal  from  the  judgment  of  God? 
On  the  ground  of  its  injustice.  When  Job  measured 
this  judgment  of  God  by  his  standard  of  right,  he 
boldly  took  the  ground  that  it  was  an  unjust  judg- 
ment.     Job,  therefore,  appealed  from  God  to  God. 

The  speeches  of  Job  and  his  friends  constitute  an 
argument  upon  the  justice  of  the  supposed  judgment 
and  the  infliction  of  punishment  upon  Job  in  the 
course  of  Avhich  the  three  friends  of  Job— Eliphaz, 
Bildad  and  Zophar— argue  in  behalf  of  the  justice  of 
the  judgment  of  God.  Toward  the  end  of  the  argu- 
ment a  fourth  speaker  arises— Elihu— a  sort  of  junior 
counsel,  who  also  takes  up  the  argument  for  the 
judgment.  Job  stands  alone,  in  propria  persona 
arguing  his  case  with  consummate  ability  and  mar- 
velous force,  arguing  against  God  himself.     When  it 

14 


210  LEADING    CASES    IN    THE    BIBLE. 

is  considered  that,  despite  his  conviction  of  the  use- 
lessness  of  any  argument  against  God,  the  mere  con- 
sciousness of  his  integrity  emboldens  him  to  present 
his  case  freely  and  openly,  we  cannot  but  admire  the 
independence  of  thought  which  inspired  him,  and 
which  must  have  been  characteristic  of  the  author  of 
the  book. 

Job  feels  that  his  friends,  from  whom  he  ex- 
pected comfort  and  consolation,  have  dealt  deceit- 
fully with  him,  in  imputing  to  him  wrong  doing  in 
the  face  of  the  fact,  necessarily  known  to  them,  that 
he  was  innocent.  Afraid  to  acknowledge  his  inno- 
cence and,  thereby  impugn  the  justice  of  God,  they 
are  prepared  to  sacrifice  their  friend,  although  they 
cannot  bring  proof  of  any  guilt  which  would  warrant 
such  severe  punishment.  He  has  been  tried  by  God 
and  punished,  although  he  has  been  given  no  hearing ; 
he  does  not  know  the  charge  preferred  against  him, 
and  has  not  been  confronted  by  witnesses.  If,  then, 
his  friends  would  successfully  advocate  the  justice  of 
God's  judgment,  he  demands  that  they  abandon  mere 
rhetoric  and  present  the  facts  upon  which  this  judg- 


JOB'S   APPEAL.  211 

ment  is  based.  His  friends  have  argued  in  behalf 
of  the  justice  of  this  judgment  by  a  specious  plea 
based  upon  a  priori  reasoning,  that  because  the  judg- 
ment was  rendered  by  God,  therefore  it  must  be  just, 
one  of  them  going  so  far  as  to  invent  facts  for  the 
purpose  of  proving  his  case.  Job  has  demolished  the 
rhetorical  efforts  of  his  adversaries,  and  standing 
conscious  of  his  innocence,  he  denounces  the  judg- 
ment as  unjust,  and  appeals  from  the  judgment  of 
God  to  God  himself  who  rendered  it,  basing  his 
appeal  upon  his  ignorance  of  the  charge  against  him 
and  upon  his  absolute  innocence  of  any  wrong  doing, 
and  fortifying  his  plea  by  a  solemn  oath  of  purgation. 
This  is  the  climax  of  his  argument.  He  resorts  to 
the  means  which  the  law  allows  to  the  hapless  man 
in  his  condition,  by  a  solemn  oath  before  God,  to 
protest  his  innocence  and  clear  himself  from  guilt. 

Is  God  just,  or  is  Job  just,  and  how  shall  we  know  ? 
Only  one  can  give  the  answer;  and  that  is  God  him- 
self, who  is  now  introduced  by  the  author  of  the  book, 
addressing  Job  out  of  a  whirlwind.  And  what  is  the 
answer  that  is  given  to  the  question?     The  ways  of 


212  LEADING    CASES    IN    THE    BIBLE. 

God  are  past  understanding.  On  reading  this  speech 
of  God  we  are  at  once  struck  with  the  fact  that  he 
does  not  answer  Job's  righteous  demand  to  know 
wherein  he  has  sinned,  nor  does  God  seek  to  justify 
himself.  In  a  series  of  unanswerable  questions  he 
overwhelms  Job  with  evidence  of  his  insignificance 
in  the  great  scheme  of  creation,  describing,  in  a  series 
of  marvelous  word-pictures,  the  greatness  and  the 
mystery  of  the  universe  and,  inferentially,  of  its 
Creator,  Job  is  not  convinced  through  his  reason, 
but  is  overwhelmed  by  the  sense  of  his  littleness.  He 
does  not  recant,  but  acknowledges  the  impossibility 
of  comprehending  the  ways  of  God.  The  argument 
having  been  concluded,  Job  is  still  left  under  the 
impression  that  his  sufferings  are  the  result  of  a 
judgment  of  God,  against  which  he  no  longer  protests, 
although  still  steadfast  in  the  belief  of  his  innocence. 
The  matter  is  too  wonderful  for  him  and  too  mys- 
terious, and  he  bows  before  the  power  which  he  does 
not  comprehend.  But  although  Job  has  been  silenced 
by  awe  of  the  Almighty,  his  appeal  has  not  been  in 
vain.      God    sustains   his    appeal   because,    although 


JOB'S   APPEAL.  213 

based  upon  the  erroneous  theory  that  his  sufferings 
were  the  result  of  a  judgment,  it  was  founded  upon 
right  and  truth.  He  was  innocent  and  his  cause 
must  prevail.  He  is  told  that  the  things  which  he 
had  spoken  of  God  were  right,  and  Eliphaz  is  told 
that  he  and  his  friends  have  spoken  folly.  And  then 
the  sorrows  of  Job  were  turned  to  joy;  he  was  re- 
stored to  his  former  estate  and  again  became  wealthy 
and  honored  and  blessed  with  children,  and  died  old 
and  full  of  days. 

Upon  the  theory  that  the  sufferings  of  Job  were 
the  result  of  a  judgment,  a  theory  which  militates 
against  the  facts  of  the  case,  we  are  driven  to  the 
conclusion  which  is  suggested  in  the  speech  of  God, 
that  this  is  one  of  the  things  which  must  remain 
incomprehensible.  But  what  if  the  theory  upon 
which  the  entire  argument  was  based  were  an  erro- 
neous one?  This,  indeed,  is  the  view  of  the  author 
of  the  book,  who  has  told  us  at  the  very  outset,  in 
the  prologue  in  the  Court  of  Heaven,  that  the  suffer- 
ings of  Job  were  not  the  result  of  a  judgment,  but 
were  merely  a  trial  of  his  righteousness.     This  is  the 


214  LEADING    CASES    IN    THE    BIBLE. 

solution  that  the  author  of  the  book  offers  of  the 
problem  which  beset  Job  and  his  friends,  and  which 
has  puzzled  all  men  in  all  times,  namely,  why  do  the 
upright  and  the  righteous  suffer,  and  the  unrighteous 
prosper  ? 

This  solution  is  offered  modestly.  The  author 
might  have  placed  his  view  in  the  mouth  of  God  and 
thus  have  given  it  a  sanction  above  all  other  views 
expressed  in  the  argument,  but  the  author  was  no 
dogmatist,  and  hence  did  not  presume  to  dictate  the 
words  of  God.  But  by  describing  the  trial  in  the 
Court  of  Heaven,  wherein  it  appears  that  Job's  mis- 
fortunes were  not  the  result  of  his  unrighteousness, 
but  were  merely  a  trial  of  his  faith,  he  has  sufficiently 
indicated  his  own  view  and  he  presents  the  case 
without  attacking  the  agnosticism  of  Job,  whose  atti- 
tude he  undoubtedly  admires. 

Job's  ease  contains  this  important  point  among 
others,  that  although  dogmatic  theology  freely  asserts 
things  about  God,  yet,  no  man  can  know  whether 
they  are  true.  Like  Job,  after  listening  to  the  con- 
cluding speech  of  God,  the  unprejudiced  mind  must 


JOB'S  APPEAL.  215 

admit  that  these  are  things  ' '  which  I  understand  not, 
things  too  wonderful  for  me  which  I  knew  not."  A 
study  of  the  case  leads  to  the  same  conclusion  as  that 
expressed  in  the  profound  words  of  the  high-minded 
agnostic  who  wrote  the  book  of  Ecclesiastes,  "Be  not 
rash  with  thy  mouth  and  let  not  thine  heart  be  hasty 
to  utter  anything  before  God;  for  God  is  in  Heaven 
and  thou  upon  earth,  therefore  let  thy  words  be  few." 


INDEX. 


Abel,  Murder  of,  34-43 
Abraham,  conveyance  to,  15,  45 
Accessory,  25-30 
Achan,  trial  of,  113-120 
Adam  and  Eve,  case  of,  14,  19- 

33,35 
Adonijah,    Abiathar   and    Joab, 

case  of,  145-156 
Adoption,  152 
Alien,  46,  47,  95,  137 
Alienation  of  land,  168 
Altar  as  place  of  refuge,  147-153 
Appeal,  none  at  Jewish  law,  208 
Arnold,  Matthew,  26 
Arrest,  exemption  from,  156 
Assembly,  44,  96,  102 
Attainder,  103,  119 
Avenger  of  blood,  41 

Babylonian  captivity,  return 
from, 17,  176 
contract  tablets,  45 
law  books,  177 
Banishment,  39,  40,  43,  149 
Bargaining,  48 
Bible,  contents  of,  1,  7,  9 
ethical  aspects  of,  12 
interpretation  of,  35 
legal  aspects  of,  5 
legal  study  of,  5,  7,  11 
methods  of  reading,  1,  6,  7 
Bible  Passages,  referred  to 
Genesis  1:26-29,  34 
2:4-3:24,  19 
9:4,  38 
9:6,  39 
15:18,  54 
19:4r-ll,  152 


Bible  Passages,  referred  to 
Genesis  23:1-20,  44 
27:1-28:9,  63 
25:29-34,  55 
28:20-22,  123 
30:28,  34,  85 
31:1-55,  75 
48:20-22,  72 
Exodus  21:2-4,  84 
21:12-14,  154 
22:9-12,  85 
31:12-17,  8 
34:21,  8 
39:35,  155 
Leviticus  24:10-23,  91 
24:17-22, 100 
25:14-37,  61 
Deuteronomy  1:17,  209 
18:20,  191 
21:1-9,  190 
21:15-17,  72 
24:16,  118,  174 
31:9,  155 
Numbers  27:1-11,  101 

36:1-13,  101 

Joshua  2:1-7,152 

6:21,  114 

7:1-26,  113 

17:1-6,  101 

Judges  11:29-40,  121 

19:22-23,  152 
2  Samuel  21:6,  43 
1  Kings  1:5-2:34,  145 
1:32-34,  146 
1:50-53,  148 
2:22,  148 
2:26-27,  149 
3:l&-28,  157 


217 


218 


INDEX. 


Bible  Passages,  referred  to 
1  Kings  21:10,  98 
21:1-29,  167 
2  Kings  9:22-26,  167 

9:25-35,  175 
Ruth  1:1-4:22,  131 
Isaiah  8:21,  98 
Jeremiah,  26:1-24,  185 

32:6-15,  177 
Job  1:6-12 ;  2:1-7 ;  42:10,  196 
2  Chronicles  6:22,  156 
Birthright,  72 

acquisition  of,  64 
advantage  of,  57 
saleof  Esau's,  55-62,  73 
Blasphemy,  91-96,  171,  185,  189 
Blood,  avenger  of,  41,  43 
Boaz  and  Ruth,  case  of,  15,  131- 

144 
Boundary,  154 
Burning,  119 

Cain,  27,  28,  36 

brand  of,  42 
Children  punished  for  parent's 

crime,  173 
Commutation,  32,  42 
Confession,  28,  37,  39,  117,  163 
Contract,  consideration  of,  60 

express,  85 

by  vow,  123 

obligation  of,  125 
Conveyance,  form  of,  53 

of  land,  44 

to  Jeremiah,  177-184 
Court,  deliberation  of,  94 

development  of,  14 

of  Elders,  15,  17 

family,  15,  81 

of  Heaven,  11,  26,  196 

of  justice,  61,  102,  187 

of  the  "  men  of  the    great 
synagogue,"  18 


Court,  patriarchal,  25,  27 

Sanhedrin,  18 
Covenant,  38,  54,  61,  86 

of  Jacob  and  Laban,  75-90 
Cross-examination,  28,  36 
Custom,  local,  112 

of  patriarchal  family,  57 

tribal,  104,  106 

Damages,  84,  85 

David,  80 

Death-penalty,  21,  29,  32,  39,  118, 

172,  173,  191,  195 
Deed  of  con veyance,44, 177,180,182 
Deity,  conception  of,  26,  27,  35 

40,  41,  43,  61,  77,  90,    9l| 

98,  99,  113 
Dowry,  76 

Edomites,  55,  72 
Elders,  court  of,  15-17 

council  of,  44,  46,  134,  170 
Elijah,  175 

Ephron  the  Hittite,  48 
Esau,  64,  73 

Eve,  punishment  of,  24,  30 
Execution,  place  of,  120 
Exile,  39-41 
Extradition,  195 

Family  court,  15,  81 

law,  25,  27,  43,  57,  68,  72,  89, 

124,  138 
property,  68,  168 
solidarity,  118,  167,  190 

Forum,  46,  102 

Fraud,  67,  70 

Gate,  46,  102,  134,  142 
Gideon,  92,  99 
Quest  friendship,  151 

Hannibal,  179 


INDEX. 


219 


Hebron,  45,  54 
Herem,  114 
High  places,  90 
Homicide,  13,  34,  39,  154 

Imprisonment,  32,  93 
Inheritance,  31, 51,  75,  77,  103,  111, 

131, 133, 174,  180 
Intention,  67,  70 
Intestate  Succession,  14,  107 
Isaac's  Will ;  the  matter  of,  63-74 


Maine,  Sir  H.  S.,  63 
Marriage  of  heiresses.  111,  112 

levirate,  136,  142 
Master  and  servant,  law  of,  82,  84, 
Matriarchate,  14,  76,  77,  78,  103 
Men  of  the  great  synagogue,  18 
Micah,  case  of,  192 
Moses,  16,  93, 102 
Murder  of  Abel,  34-43 
Murderer,  no  right  of  sanctuary 
for.  151 


Jacob,  14,  64,  122 

and  Laban,  15,  75-00 

and  Esau.  64,  73 
.Tephthah's  daughters,  case  of,  14, 

121-130 
.lehoram,  175 
.lehu,  175 
.Jeremiah,  15,  16 

conveyance  to,  177-184 

trial  of,  185-195 
Jezebel,  169 
Joab,  145-156 
Job,  26 

appeal  of,  204-215 

trial  of,  196-203 
Josephus,  99,  163 
Jubilee,  109 
Judah,  Rabbi,  162 
Judge,  king  as,  15,  26 

priest  as,  105,  113 

Kinsmen,  law  of,  38,  41,  43, 134 

Laban  and  Jacob,  14,  15,  75-t>0 

Land  laws,  44,  45,  47 

Legend  and  folk-lore,  10,  11,  13, 

19,  31,  32,  35,  160 
Levirate,  136 
Lots,  casting  of,  115 

Machpelah,  purchase  of,  15, 44, 177 


Naboth.caseof,  16,  98,  167-176 
Naturalization,  47, 137 

Oath,  60,  62,  84,  211 
Outlawry,  40-42 

Parent  and  child,  95 
Patria  potestas,  14,  79,  85,  124 
Patriarchal  authority,  14,  17,  26, 
127 

court,  15,  25,  27,  38 

custom,  57,  76 

power,  72 
Perjury,  171 
Poor  laws,  133 
Possession,  right  of,  173 

symbol  of,  139,  143 
Priest,  68,  105,  113,  149 
Primogeniture,  57,  133 
Prison,  182 
Procedure,  15,  25,  27,  28,  44,  47, 

50,  104,  108,  110,  161, 172 
Property  of  servant,  84 

testamentary   disposition   of 
72 

rights  of  women,  14 
Prophet,  false,  191 
Public  records,  181 
Punishment  of  Adam,  32 

blood  vengeance,  41,  43 

burning,  119 


220 


INDEX. 


Punishment,  commutation  of,  32 
of  children,  173 
deatli  (see  death-penalty) 
of  Eve,  30 
exile,  39 

immunity  from,  42 
imprisonment,  32,  93 
outlawry,  41 
of  serpent,  29,  30 
of  slave,  29 
stoning,  93,  119,  172 

Rahab,  152 

Recording  Office,  183 

Redemption,  135,  180 

Refuge,  place  of,  147,  153,  154 

Responsibility,  65,  173 

Roman  Law,  15,  44,  45,  52,  63,  72 

Ruth,  14,  131-144 

Sabbath,  8 

Sacrifice,  65,  96,  123,  126 

Sacrilege,  92 

Sale  of  Esau's  birthright,  55-62 

Samson,  80 

Sanctuary,  right  of,  16,  145,  155, 

156 
Sanhedrin,  18,  27,  187 
Satan  the  Accuser,  198 
Saul,  79 

Search,  right  of,  80,  81 
Slave,  29,  30,  76,  84 
Solomon,  judgmentof,  27,  157-166 
violation    of   sanctuary    by, 

145,  148,  155 
Son  of  Shelomith,  case  of,  15,  16, 

91-96 


Spoils  of  war,  117 
Stoning,  93,  119,  172 
Stranger,  40,  46,  72,  98 
Symbolic    acts,    45,  '60,    139-143. 

178 

Talmud,  18,  26 

Talmudic  view  of  authority,  105 
of  Jephthah,  127-129 
of  presumption  of  innocence, 
202 

Ten,  quorum  of,  135 

Testamentary  disposition,  63,  72 

Theft,  79,  80 

Threshold,  153 

Title,  48,  51,  54,  108 

Treason,  92,  185 

Treaty,  89 

Tribal,  custom,  107 
ownership,  44,  109 

Ultimogeniture,  57 
Ultimus  Haeres,  174 
Urijah,  case,  194 

Vows,  121-129 

Wages,  83 

Warranty,  54 

Widow's  estate  in  land,  133 

Will,  63-74 

Witnesses,  22,  36,  38,  44,  60,  61,  96 

Women,  legal  status  of,  14,  31,  76, 

102 
Zelophehad's  daughters,  case  of, 

14,  26,  77,  101-112 


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